All articles by Jack Goldsmith on Lawfarehttps://www.lawfareblog.com/contributors/14/feed
enIn Praise of Justice Department Independence Norms (and of Matthew Whitaker)https://www.lawfareblog.com/praise-justice-department-independence-norms-and-matthew-whitaker
<p>When President Trump appointed the unqualified Matthew Whitaker as acting attorney general on Nov. 7, 2018, <a href="https://www.theguardian.com/us-news/2018/nov/11/trump-matthew-whitaker-robert-mueller-democrats-constitutional-crisis">many</a> <a href="https://www.cnbc.com/2018/11/29/tom-goldstein-matt-whitaker-appointment-is-a-constitutional-crisis.html">prominent</a> people believed that the country faced yet another “constitutional crisis” point. The main underlying worry was that Whitaker, who had been critical of the Mueller investigation before assuming the acting attorney general role, would act at Trump’s behest to undermine or shut down the Mueller investigation. The worries seemed plausible. Whitaker possessed the authority, in theory, to fire Mueller, control his budget and reverse his important legal decisions. And Trump seemed to think that Whitaker was a loyalist who would look out for his interests. “I really believe he’s going to do what’s right,” Trump <a href="https://fox2now.com/2018/11/18/trump-says-whitaker-decisions-on-mueller-probe-going-to-be-up-to-him/">told</a> Fox News’s Chris Wallace.</p>
<p>But during Whitaker’s tenure, the Mueller probe pushed forward to the point where CNN is now <a href="https://www.cnn.com/2019/02/20/politics/special-counsel-conclusion-announcement/index.html">reporting</a> that Mueller is soon wrapping it up. Here in a nutshell is what we know happened during Whitaker’s tenure. A few weeks after Whitaker assumed office, Trump’s former lawyer Michael Cohen pleaded guilty to lying to Congress about Trump’s “Moscow Project,” among other Trump-Russia links. In December, New York federal prosecutors filed a sentencing document that basically accused the president of directing Cohen’s criminal campaign violations. Mueller’s office continued to push hard against former Trump campaign manager Paul Manafort. And, of course, last month Mueller indicted Trump pal Roger Stone for witness tampering, obstruction and false statements.</p>
<p>At a hearing before the House Committee on the Judiciary on Feb. 8, Whitaker testified that he had not interfered with the Mueller investigation. “We have followed the special counsel’s regulations to a T,” <a href="https://www.washingtonpost.com/politics/courts_law/after-day-of-drama-whitaker-prepares-to-face-congress/2019/02/08/5a677922-2b6e-11e9-906e-9d55b6451eb4_story.html?utm_term=.19ac14428c69">Whitaker said</a>. “There has been no decision that has required me to take any action, and I have not interfered with the special counsel’s investigation in any way.”</p>
<p>On Feb. 19, the New York Times <a href="https://www.nytimes.com/2019/02/19/us/politics/trump-investigations.html?action=click&amp;module=Top%20Stories&amp;pgtype=Homepage">reported</a>, based on anonymous sources, that Trump asked Whitaker “whether Geoffrey S. Berman, the U.S. attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation” against Trump interests. The Times does not say what Whitaker did in response, but it does say that Trump “soon soured on Mr. Whitaker” and that Trump “complained about his inability to pull levers at the Justice Department that could make the president’s many legal problems go away.” And it adds that “there is no evidence that [Whitaker] took any direct steps to intervene in the Manhattan investigation.”</p>
<p>Whitaker’s failure to intervene against Mueller is not what is primarily being reported in light of the Times story, however. Rather, many commentators are focusing on Whitaker’s supposed statements to colleagues that he saw his job at the Justice Department as in part to “jump on a grenade” for the president. And more than anything else, commentators and politicians are asking whether Trump’s alleged request to Whitaker about Berman is consistent with Whitaker’s testimony earlier this month that “at no time has the White House asked for nor have I provided any promises or commitments concerning the special counsel’s investigation or any other investigation.”</p>
<p>Through a Justice Department spokesperson, Whitaker has <a href="https://twitter.com/chrisgeidner/status/1097935363077795840">made clear</a> that he stands by his testimony despite the Times story. There will be time enough to sort this issue out. I just want to emphasize that by every public indication, including the Times story, Whitaker has not, as so many feared, interfered in any way with Mueller’s investigation or that of the Southern District of New York.</p>
<p>This is yet another extraordinary testament to the remarkable power and resilience of Justice Department norms of independence, about which I have <a href="https://www.lawfareblog.com/trump-interview-and-doj-independence">written</a> <a href="https://www.lawfareblog.com/independence-and-accountability-department-justice">a</a> <a href="https://www.weeklystandard.com/jack-goldsmith/a-crisis-that-hasnt-happened">lot</a>. I think we have to assume that Whitaker’s non-interference is also at least in part a tribute to his professional integrity. Some may speculate that Whitaker was restrained by the powerful Justice Department norms and was simply acting prudently in the face of these norms, and not out of a commitment to principle. Maybe, maybe not. But these norms don’t always operate successfully on every Justice Department official. So I think we need to give Whitaker at least a little credit based on current information. In any event, the Whitaker episode can now be added to the long list of <a href="https://www.lawfareblog.com/cycles-panicked-reactions-trump">cycles of panicked reaction</a> to Trump’s efforts to control the Department of Justice.</p>
Wed, 20 Feb 2019 16:56:23 -0500Jack Goldsmith16655What Is and Isn’t a Big Deal in Trump’s Executive Actions Related to the Borderhttps://www.lawfareblog.com/what-and-isnt-big-deal-trumps-executive-actions-related-border
<p>On Feb. 15, President Trump took a number of legal steps, including declaring a national emergency and invoking emergency authorities, in connection with his efforts to construct a wall on the southern border. There are important senses in which Trump’s actions are a big deal, and important senses in which they are not nearly as big a deal as many contend.</p>
<p align="center"><strong>I. Not a Big Deal</strong></p>
<p>Trump’s actions have been greeted with now-familiar claims that he is <a href="https://www.vox.com/policy-and-politics/2019/2/15/18226315/trump-emergency-national-wall-border-illegal">sparking a constitutional crisis</a> or <a href="https://www.nationalreview.com/2019/02/trump-emergency-declaration-contemptuous-of-rule-of-law/">threatening the rule of law</a>.</p>
<p>Considering just the substance of what Trump has done, these are large exaggerations. Everything Trump proposes to do<a href="https://www.lawfareblog.com/what-authorities-president-trump-using-build-border-wall"> purports to be grounded in </a><a href="https://www.lawfareblog.com/what-authorities-president-trump-using-build-border-wall">congressional statutes</a><a href="https://www.lawfareblog.com/what-authorities-president-trump-using-build-border-wall"> and much of what he aims to do does not rely on emergency power</a>. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them.</p>
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<p>There will be questions—some of them hard, and without obvious answers—about whether Trump’s legal team has interpreted these congressional authorizations, and the conditions on their use, accurately. But abstracting away for a moment from the deeply divisive context in which Trump has asserted these authorities, the types of statutory claims he is making based on delegated power are nothingburgers from the perspective of executive branch practice, especially in the foreign relations context. The executive branch every day relies on vague or broad or dim delegations of authority, and courts usually uphold these actions. And as Trump himself stated many times, courts will ultimately sort out his claimed statutory authority in the wall context as well.</p>
<p>Nor is Trump’s claim of emergency power outlandish—at least by the standards of past presidential practice. Many charge that Trump is <a href="https://www.washingtonpost.com/outlook/2019/02/15/there-is-no-real-emergency-border-trump-might-still-get-his-wall/?utm_term=.761ef0c97a84">declaring an emergency when there is no emergency</a>. But this begs all the relevant questions. The <a href="https://www.law.cornell.edu/uscode/text/50/chapter-34">relevant statute</a> on which Trump relies does not define the term “emergency.” Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as <a href="https://en.oxforddictionaries.com/definition/emergency">defined in common parlance</a> to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”</p>
<p>President Clinton, for example, <a href="https://www.govinfo.gov/content/pkg/WCPD-1996-03-04/pdf/WCPD-1996-03-04-Pg394.pdf">declared an emergency</a> to address the 1996 Cuban military <a href="https://en.wikipedia.org/wiki/1996_shootdown_of_Brothers_to_the_Rescue_aircraft">shootdown</a> of two Brothers to the Rescue aircraft. That event plausibly satisfied the ordinary language understanding of “emergency,” though one could debate the point. But Presidents <a href="https://www.govinfo.gov/content/pkg/WCPD-2004-03-01/pdf/WCPD-2004-03-01-Pg297.pdf">Bush</a>, <a href="https://www.govinfo.gov/content/pkg/CFR-2017-title3-vol1/pdf/CFR-2017-title3-vol1-proc9398.pdf">Obama</a> and <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-modifying-continuing-national-emergency-respect-cuba-continuing-authorize-regulation-anchorage-movement-vessels/">Trump</a> have modified and reaffirmed the national emergency first declared twenty-three years ago. The “emergency” is still in place. But it has morphed into a navigation policy with the aim—like the one Trump invokes for the wall—of preventing (among other things) “a mass migration from Cuba [that] would endanger our security by posing a disturbance or threatened disturbance of the international relations of the United States.” (President Obama appears to have added this justification for the emergency in his <a href="https://www.federalregister.gov/documents/2016/02/25/2016-04289/modifying-and-continuing-the-national-emergency-with-respect-to-cuba-and-continuing-to-authorize-the">2016 renewal</a>.) The “threat” posed today (or in 2016) by a mass migration from Cuba is not a “real” emergency and is almost certainly further from one than the “threat” posed today by mass migration from Mexico.</p>
<p>A similar analysis could be done on (among others) Obama’s declared national emergencies due to the situation in <a href="https://www.federalregister.gov/documents/2018/11/19/2018-25390/continuation-of-the-national-emergency-with-respect-to-burundi">Burundi</a> in 2015 and <a href="https://www.federalregister.gov/documents/2010/04/15/2010-8878/blocking-property-of-certain-persons-contributing-to-the-conflict-in-somalia">piratical activity near Somalia</a>, and on Bush’s declared national emergencies due to the <a href="https://www.treasury.gov/resource-center/sanctions/Documents/13303.pdf">sale of Iraqi Petroleum in 2003</a> or to <a href="https://www.federalregister.gov/documents/2003/03/10/03-5848/blocking-property-of-persons-undermining-democratic-processes-or-institutions-in-zimbabwe">political oppression in Zimbabwe in 2003</a>. One can debate whether these were obviously emergencies concerning U.S. interests in the ordinary language sense at the time they were declared. But none is an emergency in this or any other sense today, though presidents have modified and renewed all of these declarations in the intervening years. Certainly none of these declarations today concern an “unusual and extraordinary threat” to the foreign policy of the United States, as all of them claim. (In 2014, Obama noted in his <a href="https://www.federalregister.gov/documents/2014/05/29/2014-12651/ending-immunities-granted-to-the-development-fund-for-iraq-and-certain-other-iraqi-property-and">modification and renewal of the 2003 Iraq emergency order</a> that much of the original threat had dissipated, and he narrowed the order but nonetheless kept the emergency in place.) As the improbable but credible team of Harold Koh and John Yoo correctly <a href="https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&amp;httpsredir=1&amp;article=1589&amp;context=facpubs">put it</a> almost three decades ago, presidents “have declared national emergencies with little regard to whether a real emergency has actually existed.” This statement was true at the time and has been borne out by subsequent events.</p>
<p>But, one might say, as many have: None of these emergency orders involved the imaginative reshuffling of funds beyond their intended aim. I do not know if that is true. But I will accept that it is for purposes of argument and simply say that Congress has without discipline delegated so many large pots of money around the executive branch for so many vague or broadly worded purposes that repurposing or imaginative use of appropriated funds is an everyday executive branch occurrence. There are limits, but there is much wiggle room as well. And again, Trump’s appropriations tricks will be thoroughly scrutinized in court.</p>
<p>But, one might continue, as many have: Trump is using this aggressive gambit to make an end run around a Congress that declined to give the president what he wanted. To which I would say: That has been going on for a long time, and increasingly so in our era of gridlocked Congress. Scholars and commentators during the Obama era justified highly imaginative uses of executive power precisely because Congress was deadlocked. Remember the Iran Deal, the Paris Agreement, the Libya intervention, and the expansions of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)? All were novel uses of claimed statutory authority or Executive power justified in part by actual or perceived congressional intransigence. Something similar happened in the George W. Bush administration.</p>
<p>These are not “whataboutism” points. I am not saying Trump’s emergency proclamation is just like past ones—it is not. I have not yet done a serious enough legal analysis to determine whether what Trump has done is lawful or unlawful. Nor have I done adequate analysis to determine whether Trump’s emergency proclamation combines precedents in ways that are more threatening to the constitutional order than the precedents themselves, though I tentatively do not believe it does. Nor am I saying Trump’s action will or should be upheld by courts</p>
<p>I simply wish to put Trump’s actions in context by emphasizing these points: (1) Congress has delegated enormous power to the president and given him enormous effective discretion about how to spend funds; (2) presidents have for many, many decades viewed these delegations expansively, especially in contexts touching on foreign relations, and in those contexts courts almost always agree; (3) the president’s statutory emergency powers are not materially different from other delegated powers that presidents have construed broadly and that courts have almost always upheld; (4) finding imaginative ways to act to achieve important public policies on which a president was elected, in the face of a recalcitrant Congress, is what modern presidents do, often to celebratory applause. </p>
<p align="center"><strong>II. And Yet, a Big Deal</strong></p>
<p>Despite the legal ordinariness of what Trump has done here, the context in which he acts, and the way he acts, makes the situation seem, and in fact be, much worse.</p>
<p>Trump is acting in perhaps the most divisive contexts in American politics, one filled with severe anxiety or worse on all sides, and one exacerbated by Trump’s scorched-earth approach and by the longest-ever government shutdown as a result of this very issue. Any unilateral presidential action in this context is bound to be controversial.</p>
<p>Making a bad situation worse, Trump, as is his wont, is purposefully creating a large drama that includes flouting conventional norms associated with presidential power. His <a href="https://www.nytimes.com/video/us/politics/100000006362499/trump-national-emergency.html?action=click&amp;gtype=vhs&amp;version=vhs-heading&amp;module=vhs&amp;region=title-area&amp;cview=true&amp;t=2">press conference</a> announcing the declaration of emergency was a doozy that contained numerous statements that smashed norms of presidential etiquette. But perhaps none more so than this one:</p>
<blockquote><p>I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster. And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election—because they want to try to win an election, which it looks like they’re not going to be able to do.</p>
</blockquote>
<p>Here Trump did two things in connection with the exercise of emergency powers that presidents never do.</p>
<p>First, in stating that he “didn’t need to do this,” Trump acknowledged what so much of the run-up to his proclamation makes clear: there is no necessity in his action, and thus no “emergency” in the ordinary language sense of the term. As noted above, this is typically true of emergency declarations. <em>But presidents don’t admit it, much less celebrate it. </em>They tend to make emergency declarations in ways that do not highlight that the entire modern law of emergency power rests on the fiction that emergency powers can be invoked in the absence of what we normally think of as an emergency.</p>
<p>Second, in clumsily denying that the emergency declaration is about politics and the 2020 election, Trump confirmed what many people think: It <em>is</em> about politics and the 2020 election. That acknowledgment heightens and for many will confirm suspicions about mixed motives, pretext, and the like.</p>
<p>Trump is not by a mile the first president to invoke executive power aggressively for political purposes. But he might be the first plausibly to be seen to exercise emergency powers openly for political purposes. In this regard, as in many regards, Trump is undisciplined in his lack of hypocrisy. As I <a href="https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-the-presidency/537921/">explained</a> a few years ago:</p>
<blockquote><p>A corollary to Trump’s shamelessness is that he often doesn’t seek to hide or even spin his norm-breaking. Put another way, he is far less hypocritical than past presidents—and that is a bad thing. Hypocrisy is an underappreciated political virtue. It can palliate self-interested and politically divisive government action through mollifying rhetoric and a call to shared values. Trump is bad at it because he can’t “recognize the difference between what one professes in public and what one does in private, much less the utility of exploiting that difference,” Henry Farrell and Martha Finnemore <a href="https://www.foreignaffairs.com/articles/2017-05-30/trump-s-no-hypocrite">have noted</a> in <em>Foreign Affairs.</em> He is incapable of keeping his crass thoughts to himself, or of cloaking his speech in other-regarding principle.</p>
</blockquote>
<p>This is a counterintuitive idea. Many people see Trump as hypocritical since he often says one thing and does another (including things that he criticized his predecessor for). But he is profoundly not hypocritical in this sense: As in his border wall announcement, he is often guileless in asserting power, and doesn't try to hide the tension between his political aims and his asserted constitutional justifications. This is one of Trump’s most remarkable and persistent norm violations. “The clearest evidence of the stability of our values over time is the unchanging character of the lies … statesmen tell,” Michael Walzer <a href="https://www.amazon.com/Just-Unjust-Wars-4th-forth/dp/B0071K4SYG/ref=pd_sbs_14_2/147-1506437-2296933?_encoding=UTF8&amp;pd_rd_i=B0071K4SYG&amp;pd_rd_r=5aab9ea5-3197-11e9-9126-7b5e4f5c8ab6&amp;pd_rd_w=VmvUK&amp;pd_rd_wg=wxglN&amp;pf_rd_p=588939de-d3f8-42f1-a3d8-d556eae5797d&amp;pf_rd_r=2RSBJSF38SC0JQNAZSWZ&amp;psc=1&amp;refRID=2RSBJSF38SC0JQNAZSWZ">famously noted.</a> “They lie in order to justify themselves, and so they describe for us the lineaments of justice. Wherever we find hypocrisy we find moral justice.” Walzer might have added that when we see in our statesmen an absence of hypocrisy in a contested context where principle normally matters, an absence of moral justice creeps in. </p>
<p>Trump’s lack of hypocrisy in the current context is harmful for at least two reasons.</p>
<p>First, it will hurt him in court. His acknowledgement that his emergency is not “real,” and his openly political motivations, will make it harder for judges—and especially the Supreme Court justices whom he said during the press conference he hopes would rule his way—to uphold his order. This is so in part for doctrinal reasons: The president’s integrity and truthfulness, and the possibility that he is acting pretextually based on an illicit motive, will be front and center in this litigation. And it is so in part for what might be called political or atmospheric reasons. Courts don’t like to be seen as pawns asked to indulge obvious fictions in the exercise of executive power in controversial contexts. But that is the situation the courts are now in.</p>
<p>These elements were, of course, present in the travel ban litigation that Trump in the end won. Trump in a blunt, ungainly way asked the Supreme Court to once again bail out his poorly rolled-out and controversial Executive proclamation, and he did so in a way that stripped away the fictions that normally accompany emergency powers. Acknowledging that there is much legal analysis yet to be done, the justices will have a harder time upholding this proclamation due to Trump’s performance. If the Supreme Court on top of its <a href="https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf">travel ban ruling</a> follows a traditional legal analysis and also affirms Trump’s emergency action concerning the wall, it risks setting a super-bad precedent for openly opportunistic and pretextual presidential emergency action going forward. But to reach another result the Court might have to put a serious dent in presidential authority that will adversely affect future presidents who legitimately need this authority. Trump has put the Court in a terrible position.</p>
<p>The second reason Trump’s actions are harmful is that the broader legitimacy of the presidency that wields such vast powers over so many lives depends on presidents who present and exercise those powers with at least a modicum of decorum, modesty and attention to rule-of-law values. As I have argued in <a href="https://www.amazon.com/dp/B002OJIBLK/ref=dp-kindle-redirect?_encoding=UTF8&amp;btkr=1">two</a> <a href="https://www.amazon.com/Power-Constraint-Accountable-Presidency-After-ebook/dp/B005LW5JWQ/ref=pd_sim_351_6/147-1506437-2296933?_encoding=UTF8&amp;pd_rd_i=B005LW5JWQ&amp;pd_rd_r=e3142745-3164-11e9-8982-5df37f3e6971&amp;pd_rd_w=nCzeE&amp;pd_rd_wg=ii76m&amp;pf_rd_p=90485860-83e9-4fd9-b838-b28a9b7fda30&amp;pf_rd_r=SCQYEEGHKS1KGK4WBXY6&amp;psc=1&amp;refRID=SCQYEEGHKS1KGK4WBXY6">books</a>, one of the great mistakes of the George W. Bush presidency was the tendency to act on the basis of an open desire to expand presidential powers—something most of the main players, including President Bush, later <a href="https://www.nytimes.com/2011/09/18/magazine/how-dick-cheney-reined-in-presidential-power.html">regretted</a>. Trump’s performances make the performances of the Article II chest-thumpers in the Bush administration seem restrained by comparison. To be clear, the Bush team invoked Article II powers in substance <em>much</em> more aggressively than Trump. But their public rhetoric, while damaging to the presidency, was not, I think, as damaging as the impact of Trump’s openly politically self-regarding rhetoric. This is a hard thing to prove or even know for sure. But it is not necessary to decide whether the Bush or Trump rhetorical strategy was worse to know that Trump’s corrodes the presidency.</p>
<p>Trump’s utter lack of hypocrisy in the aggressive exercise of presidential power is a clarifying moment for the nation. His inability to withhold his private motivations, combined with his willingness to push the presidential envelope in controversial ways, combined with his unsteady grasp of his office and worrisome judgment in wielding his massive powers, has shined the brightest of lights on how much power Congress has given away, and how much extraordinary power and discretion presidents have amassed. After Trump, and due to him, there will be a serious reckoning with this constitutional arrangement like no time since the 1970s, and possibly ever in American history. Whether the Congress and the nation can do anything about it is another matter. I have my doubts.</p>
Sat, 16 Feb 2019 09:25:15 -0500Jack Goldsmith16635William Barr’s Remarkable Non-Commitments About the Mueller Reporthttps://www.lawfareblog.com/william-barrs-remarkable-non-commitments-about-mueller-report
<p>“I don’t think there’ll be a report,” President Trump’s former attorney, John Dowd, recently <a href="https://abcnews.go.com/Politics/trump-lawyer-slams-mueller-probe-maintains-president-cleared/story?id=60967234">told</a> ABC News. “I will be shocked if anything regarding the president is made public, other than ‘We’re done.’” Referring to a possible report by Special Counsel Robert Mueller, Dowd suggested Mueller won’t release a detailed public accounting of the results of the investigation because he has nothing on Trump.</p>
<p>Another reason there might not be a public report—or, at least, not much of one—is because William Barr, who <a href="https://www.politico.com/story/2019/02/12/senate-advances-barr-nomination-1166354">will likely be attorney general by the end of the week</a>, might not release one. It is Attorney General Barr’s decision, not Mueller’s<em>, </em>whether to give any information in Mueller’s report to Congress and the public. As we show in this post, Barr in his confirmation hearings committed himself to being transparent, consistent with a strict adherence to applicable laws and regulations. And the applicable laws and regulations require Barr to report very little to Congress or the public.</p>
<p align="center"><strong>The Special Counsel Regulations</strong></p>
<p>According to Deputy Attorney General Rod Rosenstein’s appointment <a href="https://www.justice.gov/opa/press-release/file/967231/download'">order</a>, the special counsel <a href="https://www.law.cornell.edu/cfr/text/28/part-600">regulations</a> “appl[y]” to Mueller’s investigation. It is important to recall that these regulations were designed and implemented against the background of a failed experiment with the independent counsel under the 1978 Ethics in Government Act and the Independent Counsel Reauthorization Act of 1994, and, in particular, the reaction to Ken Starr’s controversial report to Congress concerning his investigation of President Clinton. According to the <a href="http://lawfare.s3-us-west-2.amazonaws.com/staging/2018/final_rule_99-17327%20%281%29.pdf">section-by-section discussion of these regulations by its 1999 drafters in a final rule published to the Federal Register</a>, one of the main aims of reform in the regulations was to rein in reporting about the special counsel investigation:</p>
<blockquote><p>The principal source of the problems with the Final Report requirement as set forth in the Independent Counsel Act is the fact that the Report typically has been made public, unlike the closing documentation of any other criminal investigation. This single fact both provides an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.</p>
</blockquote>
<p>The special counsel regulations under which Mueller operates reflect these concerns. They give Mueller no authority to issue a report directly to Congress. Rather, under <a href="https://www.law.cornell.edu/cfr/text/28/600.8">28 CFR § 600.8</a>, at “the conclusion of [Mueller’s] work,” he “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” According to the <a href="https://www.govinfo.gov/content/pkg/FR-1999-07-09/html/99-17327.htm">explainer in the Federal Register</a>, this provision contemplates “a <em>limited </em>reporting requirement . . . , in the form of a summary final report to the Attorney General,” which should be handled as “a confidential document, as are internal documents relating to any federal criminal investigation” (emphasis added). As we <a href="https://www.lawfareblog.com/dont-expect-starr-report-mueller">explained</a> in our fuller treatment of the regulations, Section 600.8 contemplates a report from the special counsel to the attorney general “akin to the usual internal documentation related to a criminal investigation that does not result in indictment.”</p>
<p>We can imagine Mueller’s report to Barr going beyond a typical declination memorandum. For example, Mueller might have reasons to think Trump violated federal criminal law, but he might be barred from prosecuting Trump in light of the Justice Department’s <a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">controlling ruling</a> that the president cannot be indicted. If that is so, Mueller might want to explain to Barr in some detail the reasons for his suspicions about Trump’s possibly illegal actions, especially if those suspicions relate to the subject matter of the counterintelligence investigation—the Trump campaign’s ties to Russia in connection with the 2016 election. Even if Mueller concludes that Trump violated no law, he might want to tell the attorney general quite a lot about the counterintelligence implications of what he learned.</p>
<p>So let us assume that Mueller sends Barr a very lengthy report. At that point, the regulations require Barr to tell Congress or the public very little about the report.</p>
<p><a href="https://www.law.cornell.edu/cfr/text/28/600.9">Section 600.9(a)(3)</a> requires Barr to notify Congress about the completion of Mueller’s work and to explain any instances in which Barr concluded that a “proposed action” by Mueller “should not be pursued.” If Barr does not second-guess an action Mueller wants to take, then <em>Barr’s only reporting duty is to tell Congress that Mueller’s work is done</em>. And even if Barr does check an action proposed by Mueller, Barr is supposed to give Congress only a <em>very brief</em> explanation why. As the Justice Department stated in the <a href="https://www.govinfo.gov/content/pkg/FR-1999-07-09/html/99-17327.htm">Federal Register document</a> that accompanied for the regulations: The reports to Congress contemplated by subsection (a) “<em>will be brief notifications</em>, with an outline of the actions and the reasons for them” (emphasis added).</p>
<p>Under subsection (c) of the regulations, Barr is additionally allowed (but not required) to release to the public whatever Mueller reported to Congress, <em>if</em> he determines that public release of the reports to Congress “would be in the public interest,” and even then only “to the extent that release would comply with applicable legal restrictions.”</p>
<p>In sum, even assuming that Mueller sends Barr a detailed report, Barr need only tell Congress that the investigation has ended and briefly explain any restriction he put on Mueller’s proposed course of action. That is all the regulations require Barr to do. There might be ways for Barr to read the law creatively to allow him to do more, as <em>Lawfare</em> writers <a href="https://www.lawfareblog.com/what-expect-when-youre-expecting-mueller-report">have</a> <a href="https://www.lawfareblog.com/how-robert-mueller-can-write-report-justice-department-cannot-suppress">noted</a>. We will not repeat those arguments here. The relevant point is that Barr <em>need not do more</em> under the law. (There is a plausible way to read the regulations to not permit Barr to do more, but we will set that aside for present purposes.)</p>
<p align="center"><strong>Barr’s Confirmation Hearings</strong></p>
<p>It is against this background that one should read Barr’s very carefully worded responses to senators’ questions at his confirmation hearings.</p>
<p>Barr said this in his <a href="https://www.cnn.com/2019/01/14/politics/read-william-barr-senate-testimony/index.html">opening statement</a>: “I … believe it is very important that the public and Congress be informed of the results of the special counsel’s work. My goal will be to provide as much transparency as I can<em> consistent with the law</em>” (emphasis added).</p>
<p>Barr was then asked repeatedly whether he would share Mueller’s report with Congress. He said over and over again that he would do as much as he could, <em>consistent with pertinent law</em>. Here are the main examples, which we quote at length in order to emphasize just how careful Barr was not to commit to anything beyond what the law requires:</p>
<blockquote><p><strong>Sen. Lindsey Graham: </strong>When his report comes to you, will you share it with us as much as possible?</p>
<p><strong>Barr:</strong> Consistent with the regulations and the law, yes.</p>
</blockquote>
<blockquote><p><strong>Sen. Dianne Feinstein:</strong> Will you commit to making any report Mueller produces at the conclusion of his investigation available to Congress and to the public?</p>
<p><strong>Barr:</strong> I am going to make as much information available as I can consistent with the rules and regulations that are part of the special counsel regulations. …</p>
<p><strong>Feinstein:</strong> Will you provide Mueller’s report to Congress, not your rewrite or a summary?</p>
<p><strong>Barr:</strong> Well, the regs do say that Mueller is supposed to do a summary report of his prosecutive and his declination decisions and that they will be handled as a confidential document as are internal documents relating to any federal criminal investigation. Now, I’m not sure—and then the [attorney general] has some flexibility and discretion in terms of the [attorney general]’s report. … [M]y objective and goal is to get as much as I can of the information to congress and the public. These are departmental regulations, and I’m going to be talking to Rod Rosenstein and Bob Mueller. … There’s probably existing thinking in the department as to how to handle this. But all I can say at this stage, because I have no clue as to what’s being planned, is that I am going to try to get the information out there <em>consistent with these regulations and to the extent I have discretion</em>, I will exercise that discretion to do that. (Emphasis added)</p>
</blockquote>
<blockquote><p><strong>Sen. Patrick Leahy: </strong>So you’d be in favor of releasing the investigative report when it’s completed?</p>
<p><strong>Barr:</strong> As I have said, I’m in favor of as much transparency as there can be with the rules and the law.</p>
</blockquote>
<blockquote><p><strong>Sen. Amy Klobuchar: </strong>Will you commit to make public all of the report’s conclusions, the Mueller report even if some of the evidence supporting the conclusions can’t be made public?</p>
<p><strong>Barr:</strong> That certainly is my goal and intent. It’s hard for me to conceive of a conclusion that would run afoul of the regs as currently written, but that’s certainly my intent.</p>
</blockquote>
<blockquote><p><strong>Sen. Richard Blumenthal: </strong>[Will you] commit to explaining to us what the reasons are for your deleting any information that the special counsel includes that you are preventing us or the public from seeing?</p>
<p><strong>Barr: </strong>Yeah. That would be my intent. … I don't know what kind of report is being prepared. I have no idea, and I have no idea what Acting Attorney General Rosenstein has discussed with Special Counsel Mueller. If I’m confirmed, I’m going to go in and see what’s being contemplated and what they’ve agreed to, and what their interpretation—you know, what game plan they have in mind … but my purpose is to get as much accurate information out as I can consistent with the regulations.</p>
</blockquote>
<blockquote><p><strong>Sen. Mazie Hirono: </strong>So what I'm hearing you say, that in spite of the fact that you want to be transparent, neither Congress nor [the] public will get the Mueller report because that’s confidential. So what we will be getting is your report of the Mueller report. Subject to applicable laws limiting disclosure. So is that what you’re telling us?</p>
<p><strong>Barr:</strong> I don't know what—at the end of the day, what will be releasable. I don’t know what Bob Mueller is writing.</p>
<p><strong>Hirono:</strong> You said that the Mueller report is confidential pursuant to whatever the regulations are that apply to him. So I’m just trying to get, as to what you’re going to be transparent about?</p>
<p><strong>Barr:</strong> As the rules stand now, people should be aware that the rules, I think, say that the independent—the special counsel will prepare a summary report on any prosecutive or declination decisions and that that shall be confidential and shall be treated as any other declination or prosecutive material within the department. In addition, the attorney general is responsible for notifying and reporting certain information upon the conclusion of the investigation. Now how these are going to fit together and what can be gotten out there, I have to wait and—I would have to wait. I’d want to talk to Rod Rosenstein and see what he has discussed with Mueller and what—</p>
<p><strong>Hirono:</strong> But you have testified you’d like to make as much of the original report—</p>
<p><strong>Barr:</strong> All I can say now is—all I can say right now is my goal and intent is to get as much information out as I can consistent with the regulations.</p>
</blockquote>
<blockquote><p><strong>Sen. John Kennedy:</strong> Let’s assume that Mr. Mueller at some point, hopefully soon, writes a report and that report will be given to you. What happens next under the protocol rules and regulations at Justice?</p>
<p><strong>Barr:</strong> Well under the current rules, that report is supposed to be confidential and treated as, you know, the prosecution and declination documents in an ordinary—any other criminal case. And then, the attorney general as I understand the rules, would report to Congress about the conclusion of the investigation. I believe there may be discretion there about what the attorney general can put in that report.</p>
</blockquote>
<blockquote><p><strong>Sen. Chris Coons:</strong> I didn't hear a concrete commitment about release and I think this is a very significant investigation, and you’ve been very forthcoming about wanting to protect it. The [Justice Department] has released information about declination memos, about descriptions of decisions not to prosecute in the past, I’ll cite the Michael Brown case, for example. Would you allow Special Counsel Mueller to release information about declination memos in the Russia investigation as he sees fit?</p>
<p><strong>Barr:</strong> I actually don’t think Mueller would do that because it would be contrary to the regulations, but that’s one of the reasons I want to talk to Mueller and Rosenstein and figure out, you know, what the lay of the land is.</p>
<p><strong>Coons:</strong> But if appropriate under current regulations, you wouldn’t have any hesitation about saying prosecutorial decisions should be part of that final report?</p>
<p><strong>Barr:</strong> As I said, I want to get out as much as I can under the regulations.</p>
</blockquote>
<blockquote><p><strong>Sen. Thom Tillis:</strong> Did you also say … that Special Counsel Mueller [s]hould be allowed to draw this to a conclusion, then he will submit his report and you’re going to do everything that you can to present as much of that information as you can to the extent that confidential information is not being compromised?</p>
<p><strong>Barr:</strong> Yeah, to the extent the regulations permit it.</p>
</blockquote>
<p>Barr was remarkably—and, in our view, understandably—noncommittal in these statements. He reminded the senators of what the regulations say and noted that he would follow them. He also made clear that he does not know how the Justice Department has interpreted the regulations, or what they might have in mind for getting the Mueller information to Congress or the public. Barr came closest to making a novel commitment when he told Klobuchar that his “goal and intent” would be to “make public all of the report’s <em>conclusions</em>” (emphasis added). However, those conclusions could, consistent with his testimony and the regulations, be as minimal as noting who Mueller decided to prosecute.</p>
<p>We don’t think there is anything untoward in Barr’s responses to the senators. He acted prudently in sticking to the law, especially since, as he noted, he has no idea what Mueller is planning or how the Justice Department interprets the regulations. We simply wish to emphasize that Barr did not commit to making much if any of Mueller’s work available to Congress or the public, and that the regulations Barr wrapped himself in require him to report very little.</p>
<p>In this regard, some other elements of Barr’s testimony are worth considering. Several senators tried to pin down or limit Barr’s discretion vis-a-vis Mueller. For example, Coons tried to get Barr to commit to deferring to Mueller just as Sen. Edward Kennedy got attorney general nominee Elliot Richardson to pledge to defer to the decisions of the special prosecutor during Watergate. Barr would not bite:</p>
<blockquote><p><strong>Coons:</strong> Senator Kennedy followed up by asking Richardson if the special prosecutor would have the complete authority and responsibility for determining whom he prosecuted and at what location. Richardson said simply, yes. Would you give a similar answer?</p>
<p><strong>Barr:</strong> No, I would give the answer that’s in the current regulations, which is that the special counsel has, you know, broad discretion but the Acting Attorney General in this case, Rod Rosenstein, can ask him about major decisions. And if they disagree on a major decision, and if after giving great weight to the special counsel’s position, the acting attorney general felt that it was so unwarranted under established policies that it would not be followed, then that would be reported to this committee.</p>
<p><strong>Coons:</strong> Senators asked Elliott Richardson what he would do if he disagreed with the special prosecutor. Richardson testified to the committee the special prosecutor’s judgment would prevail. That’s not what you’re saying. You’re saying if you have a difference of opinion with Special Counsel Mueller you won’t necessarily back his decision. You might overrule it?</p>
<p><strong>Barr:</strong> Under the regulations there is the possibility of that. … A lot of water has gone under the dam since Elliott Richardson, and a lot of different administrations on both parties have experimented with special counsel arrangements, and the existing rules I think reflect the experience of both Republican and Democratic administrations and strike the right balance. They [were] put together in the Clinton administration after Ken Starr’s investigation.</p>
</blockquote>
<p>Also, in exchanges with Coons, Leahy and Blumenthal, Barr emphatically reserved the possibility that valid claims of executive privilege—about which he has strong views—might inform what elements of the Mueller report he makes available to Congress:</p>
<blockquote><p><strong>Coons: </strong>Suppose the prosecutor determines it’s necessary to get the president’s affidavit or to have his testimony personally. Would that be the kind of determination he the special prosecutor could make? Richardson said yes. Will you give a similar answer today that you won’t interfere with Special Counsel Mueller seeking testimony from the president?</p>
<p><strong>Barr:</strong> You know, I think, as I say, the regulations currently provide some avenue if there’s some disagreement. I think that in order to overrule Mueller someone would have to—the attorney general or the acting attorney general—would have to determine after giving Mueller’s position great weight, that it was so unwarranted under established policies that it should not be done. So that’s the standard I would apply, but I’m not going to surrender the—the regulations give some responsibility to the attorney general to have this sort of general—not day-to-day supervision, but sort of be there in case something really transcends the established policies. I’m not surrendering that responsibility. I’m not pledging it away.</p>
</blockquote>
<blockquote><p><strong>Leahy:</strong> Do you see a case where the president could claim executive privilege and say that parts of the report could not be released?</p>
<p><strong>Barr:</strong> I don’t have a clue as to what would be in the report. The report could end up being not very big, I don’t know what’s going to be in the report. In theory if there was executive privilege material to which an executive privilege claim could be made, someone might raise a claim of executive privilege.</p>
</blockquote>
<blockquote><p><strong>Blumenthal:</strong> Will you commit that you will allow the special counsel to exercise his judgment on subpoenas that are issued and indictments that he may decide should be brought?</p>
<p><strong>Barr:</strong> As I said, I will carry out my responsibilities under the regulations. Under the regulations, the—whoever is attorney general can only overrule the special counsel if the special counsel does something that is so unwarranted under established practice. I am not going to surrender the responsibilities I have. I would—you would not like it if I made some pledge to the president that I was going to exercise my responsibilities in a particular way, and I’m not going to make a pledge to anyone on this committee that I’m going to exercise it in a particular way or surrender it.</p>
</blockquote>
<p>Barr’s claims are well within the bounds of the special counsel regulations, as <a href="https://www.law.cornell.edu/cfr/text/28/600.7">Section 600.7</a> says that the “Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” According to the comments in the Federal Register, while the special counsel can exercise independent prosecutorial discretion, “it is intended that ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General.” In his testimony, Barr refused to make to a firm commitment on executive privilege and correctly noted his role as the final decision-maker in the investigation.</p>
<p>There is a separate question here about whether and how Barr might send information uncovered by Mueller to Congress for purposes of impeachment. The special counsel regulations say “nothing about impeachment referrals one way or the other,” as Quinta Jurecic and Ben Wittes <a href="https://www.lawfareblog.com/will-we-ever-learn-what-bob-mueller-knows">once noted</a>. Whether Barr can refer impeachment material uncovered by Mueller to Congress outside of the scope of the current special counsel regulations is a hard question that we cannot answer today. Remarkably, no one asked Barr about this at his hearing. The Senate did not even try to extract a pledge from Barr about Congress’s entitlement to potential impeachment material. Thus Barr gave no assurances, one way or the other, on that matter.</p>
<p align="center">***</p>
<p>A few weeks ago, Mikhaila Fogel, Jurecic and Wittes <a href="https://www.lawfareblog.com/lessons-watergate-what-senate-judiciary-committee-should-ask-bill-barr">summarized</a> what questions the Senate asked of attorney general nominees Elliot Richardson and William Saxbe in the 1970s with respect to the special prosecutors’ investigation of the Watergate matter. They also summarized the extraordinary assurances that those two men gave the Senate about not interfering with the special prosecutors’ work.</p>
<p>The Barr hearings were quite different. The senators tried to pin Barr down, but he refused to let them. He was able to avoid “pledging away” his discretion by invoking the law, including the special counsel regulations, which require him to release very little information to Congress or the public. Barr may well find ways to release a lot of information about the Mueller investigation. But nothing in the special counsel regulations or in his testimony requires him to do that.</p>
Wed, 13 Feb 2019 16:34:36 -0500Jack Goldsmith, Maddie McMahon16615Constitutional Issues Relating to the NATO Support Acthttps://www.lawfareblog.com/constitutional-issues-relating-nato-support-act
<p>President Trump is <a href="https://www.nytimes.com/2019/01/14/us/politics/nato-president-trump.html">making noises again</a> about withdrawing the United States from the <a href="https://www.nato.int/cps/ie/natohq/official_texts_17120.htm">North Atlantic Treaty</a>, which established NATO. Last week the House of Representatives voted 357-22 in support of the <a href="https://www.congress.gov/bill/116th-congress/house-bill/676/text">NATO Support Act</a>. The bill does three things. First, it states the “sense of Congress” that the president “shall not withdraw the United States from NATO,” and that “the case <em>Goldwater v. Carter</em> is not controlling legal precedent.” Second, it states that “the policy of the United States” is to remain in NATO, to reject efforts to withdraw from NATO, and to work with and support NATO. Third, and most importantly, it prohibits funds “to be appropriated, obligated, or expended to take any action to withdraw the United States from the North Atlantic Treaty.”</p>
<p>These provisions together appear to be designed to prohibit the president from withdrawing from the North Atlantic Treaty. Whether they accomplish this goal is unclear. The language of the act passed by the House could surely be strengthened to make the prohibition on presidential withdrawal clearer and more direct. For example, it could follow the unpassed Senate version (<a href="https://www.congress.gov/bill/116th-congress/senate-joint-resolution/4/text">S.J. Res. 4</a>) and add an explicit statement—untied to spending restrictions or to actions that might implicate the president’s power over diplomacy—that the president “shall not suspend, terminate, or withdraw the United States from the North Atlantic Treaty … except” with two-thirds Senate approval or an act of Congress. Our concern here is with the constitutional question of whether a properly drafted statute could restrict the president’s power to withdraw. For this analysis we will therefore assume that the NATO Support Act prohibits the president from withdrawing from the treaty, although we lift this assumption at the end when considering whether courts could adjudicate such a withdrawal. </p>
<p>With this caveat, we reach two conclusions. First, Trump has the constitutional authority to withdraw from the North Atlantic Treaty in accordance with its terms and in the face of congressional silence. Second, his authority to do so would be much less certain if Congress were to bar such withdrawal, whether in the NATO Support Act or other legislation.</p>
<p align="center"><strong>A. Background: Presidential Power to Withdraw From Treaties</strong></p>
<p>The United States ratified the North Atlantic Treaty in 1949 after the Senate gave its consent. Under Article 5 of the Treaty, the parties (currently 29 countries) have famously agreed that an armed attack on any of them in Europe or North America “shall be considered an attack against them all” and that if such an attack occurs, each of them “will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.” The Treaty further provides in Article 13 that any party may withdraw from the agreement one year after depositing a notice of denunciation. (An indication that NATO’s framers might not have imagined that the United States would ever withdraw is that the treaty specifies that notice must be given “<em>to the Government of the United States of America.</em>”)</p>
<p>Article II of the U.S. Constitution specifies that treaties are to be made by the president with the advice and consent of two-thirds of the Senate. But it does not specify how the United States can terminate or withdraw from treaties. As one of us has <a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5803&amp;context=faculty_scholarship">recounted</a> in depth, it is now reasonably settled as a matter of historical practice that presidents have the authority to withdraw the United States from treaties, especially when the treaties (like the North Atlantic Treaty) have a denunciation clause, at least in cases where the withdrawal would not violate the terms of the treaty or international law. There have been well over 100 treaty terminations and withdrawals during the 20th and early 21st centuries and almost all of them have been carried out unilaterally by presidents. Moreover, almost none of these presidential actions has generated constitutional controversy. In part because of this longstanding and uncontroversial historical practice, both the <em>Restatement (Third) of Foreign Relations Law</em> and the recent <em>Restatement (Fourth)</em> have concluded that presidents have a power to terminate or withdraw from a treaty, at least when such action is permitted under international law (such as when it is carried out pursuant to a withdrawal clause).</p>
<p>One of the few treaty withdrawals that did generate constitutional controversy was President Carter’s decision to withdraw the United States from a mutual defense treaty with Taiwan in the 1970s, as part of his decision to recognize the People’s Republic of China. A group of legislators challenged his action in court, arguing that he needed senatorial or congressional approval. The U.S. Court of Appeals for the D.C. Circuit <a href="https://openjurist.org/617/f2d/697/goldwater-v-carter">rejected this argument</a>, emphasizing that Carter had acted pursuant to the treaty’s withdrawal clause and reasoning that “the President’s authority . . . is at its zenith when the Senate has consented to a treaty that expressly provides for termination on one year’s notice, and the President’s action is the giving of notice of termination.” This reasoning would also apply to a presidential termination of the North Atlantic Treaty.</p>
<p>To be sure, the issue is not entirely settled because the Supreme Court, in <a href="https://supreme.justia.com/cases/federal/us/444/996/"><em>Goldwater v. Carter</em></a>, declined to review the merits of the D.C. Circuit’s decision, with a majority of the justices concluding that the case was nonjusticiable. Since <em>Goldwater</em>, however, presidents have unilaterally terminated dozens of treaties and, as before <em>Goldwater</em>, most of these terminations have not generated constitutional controversy. And, putting aside the North Atlantic Treaty, Trump has himself already initiated U.S withdrawal from (or stated an intention to withdraw from) at least seven international agreements, including three Senate-approved treaties (concerning <a href="https://www.state.gov/secretary/remarks/2018/12/287873.htm">arms control</a>, <a href="https://www.reuters.com/article/usa-diplomacy-treaty/u-s-withdrawing-from-vienna-protocol-on-dispute-resolution-bolton-idUSW1N1UJ00V">International Court of Justice jurisdiction over consular relations</a>, and <a href="https://www.nytimes.com/2018/10/03/world/middleeast/us-withdraws-treaty-iran.html">amity with Iran</a>), again without serious constitutional controversy.</p>
<p>The Supreme Court’s dismissal in <em>Goldwater</em>, and its 1997 <a href="https://scholar.google.com/scholar_case?case=3363577568877703610&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">decision</a> generally disallowing legislators from suing to challenge executive action, limit judicial review of presidential treaty withdrawals—at least where the Senate, or both houses of Congress, has not taken action to oppose the termination. For example, a group of legislators challenged President George W. Bush’s decision in 2002 to withdraw the United States from the Anti-Ballistic Missile Treaty pursuant to a withdrawal clause in the treaty, but a court <a href="https://scholar.google.com/scholar_case?case=2577729722448278859&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">dismissed</a> the case based on both the political question doctrine and because the legislators were deemed to lack standing.</p>
<p>In sum, under the prevailing understanding of current law, Trump has the constitutional authority to withdraw the United States from the North Atlantic Treaty, pursuant to its withdrawal provision, at least in the absence of formal action by Congress<em>. </em>And if he makes that decision, it is unlikely that a court would review it. Given NATO’s historical and continuing importance, that might seem like a shocking proposition, and it is certainly a testament to the breadth of modern <a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf">presidential control over international law</a>. But it follows pretty clearly from current legal understandings.</p>
<p>The legal situation could change quite a lot, however, if Congress enacts the NATO Support Act.</p>
<p align="center"><strong>B. <em>Zivotofsky II</em></strong></p>
<p>We cannot imagine Trump signing the NATO Support Act into law. But the bill passed in the House by a margin sufficient to override a veto, and the bill in the Senate might have similar support. If Congress enacts some version of the NATO Support Act over a presidential veto, it would, as a statute, substantially alter the calculus on whether Trump can withdraw from the North Atlantic Treaty. But there are many complexities and uncertainties.</p>
<p>In light of longstanding practice, the presidential power to terminate treaties is at least an <em>inherent</em> presidential power. That means, as practice shows, that the president can terminate treaties in the face of congressional silence. The question posed by an enacted NATO Support Act is whether the president’s power to terminate is <em>exclusive</em>, which would mean that he could terminate a treaty even in the face of a restrictive congressional directive like the NATO Support Act.</p>
<p>Justice Robert Jackson famously <a href="https://www.law.cornell.edu/supremecourt/text/343/579#writing-USSC_CR_0343_0579_ZC2">maintained</a> that a presidential claim of exclusive power faces a “severe” test since it lies at the “lowest ebb” of presidential power and is “most vulnerable to attack and in the least favorable of possible constitutional postures.” That sounds like a tough standard for the president to meet. But in its first real post-<em>Youngstown </em>test in the Supreme Court a few years ago in <a href="https://supreme.justia.com/cases/federal/us/576/13-628/#tab-opinion-3417073"><em>Zivotofsky II</em></a>, the president prevailed in the face of a congressional foreign relations law prohibition.</p>
<p><em>Zivotofsky II</em> concerned the executive branch policy of recording only “Jerusalem,” and no nation, as the place of birth in the passports of U.S. citizens born in that city. Presidents had long claimed the power to control this passport designation as an element of their implied Article II power to recognize foreign states and, relatedly, to determine the United States’ view on contested questions of sovereignty. Congress sought to countermand the presidential passport policy in a 2003 law that required the secretary of state to “record the place of birth as Israel” when a U.S. citizen born in Jerusalem requested the designation. The president disregarded this statutory directive on the ground that his power was exclusive. The Supreme Court agreed.</p>
<p>The court briefly nodded to constitutional text and structure, and it looked to judicial precedents, which contained extensive dicta that cut in different directions. (For a complete analysis, see <a href="http://harvardlawreview.org/wp-content/uploads/2015/11/vol129_goldsmith.pdf">here</a>.) But two other considerations seemed most important to the court, and are especially pertinent to the legality of the NATO Support Act.</p>
<p>First, the court looked to the “understandings and practice[s]” of the political branches, which showed that Congress had been involved in issues related to recognition on a number of occasions in the nineteenth century but that presidents had acted unilaterally, largely in the face of congressional silence, in the twentieth century. The court concluded that “the weight of historical evidence” supported presidential exclusivity.</p>
<p>Second, the court relied heavily on “functional considerations” that render the presidency uniquely suited to determine a “single policy regarding which governments are legitimate in the eyes of the United States.” These characteristics include unity and its corollaries, “[d]ecision, activity, secrecy, and dispatch,” and the ability to speak with one voice. After concluding that the recognition power was exclusive, the court further ruled that the Jerusalem passport policy fell within that exclusive power and was unduly burdened by Congress’s efforts to change that policy.</p>
<p align="center"><strong>C. The NATO Support Act Under <em>Zivotofsky II</em></strong></p>
<p><em>Zivotofsky II </em>is a complex decision with numerous caveats that a court might apply to the NATO Support Act in many different ways. We cannot offer an exhaustive treatment here. But what follows, we think, are the main considerations.</p>
<p>First, consider constitutional text. The Ambassador Receipt Clause was direct (but far from dispositive) textual support for a presidential recognition power. The power to receive ambassadors is given to the president alone. By contrast, the treatymaking power is divided between the president and the Senate, and the power to terminate treaties is nowhere mentioned in the Constitution, at least not expressly. That consideration, by itself, might suggest that the president’s treaty termination power is not exclusive. But it does not tell us how it might be regulated or limited. For example, it does not tell us whether the Senate as a body can limit the president’s termination power, or how. And it does not tell us whether or why Congress has the affirmative authority under Article I to limit the president’s power to terminate a treaty that was made not by Congress and the president, but rather by the Senate and the president. While the NATO Support Act invokes Congress’s spending authority, it is reasonably well established that Congress may not use this authority to restrict executive authority that it may not regulate directly.</p>
<p>Second, the court in <em>Zivotofsky II </em>cited a number of Supreme Court decisions throughout U.S. history, some of which suggested that the recognition power was exclusive and some of which suggested that it was shared. By contrast, there is no Supreme Court decision in U.S. history that remotely suggests that the treaty termination power is exclusive. Indeed, there is no Supreme Court decision that recognizes, even in dicta, that the president possesses the treaty termination power at all.</p>
<p>Third, the patterns of historical practice differ for recognition and for treaty termination. The president exercised a unilateral power to recognize foreign nations and governments from the beginning. While Congress occasionally was involved in recognition issues and in a few instances sought to guide or limit the president, for most of American history, and especially since the early twentieth century, the recognition power has almost always been exercised by the president alone. By contrast, in the nineteenth century the treaty termination power, although not frequently exercised, was generally shared between the president and Congress, with Congress either directing or approving particular terminations. There are more instances, and clearer instances, of Congress or the Senate exercising a shared treaty termination power in the nineteenth century than there are instances of Congress and the president exercising a shared recognition power. </p>
<p>The 19th century practice, considered alone, cuts against an exclusive presidential power. However, since the early 20th century, presidents have generally exercised a unilateral treaty termination power, and Congress has generally remained silent. Such silence certainly need not imply that Congress lacks the power to regulate when it wants. But <em>Zivotofsky II </em>inferred presidential exclusivity in part from the fact that “[o]ver the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states”—i.e. it inferred exclusivity in part from a similar pattern of modern unilateral presidential action in the face of congressional silence.</p>
<p>Fourth, functional considerations mostly cut in favor of presidential exclusivity, as in <em>Zivotofsky II. </em>As one of us has <a href="http://harvardlawreview.org/wp-content/uploads/2015/11/vol129_goldsmith.pdf">noted</a>, the Supreme Court in <em>Zivotofsky II </em>does not explain why the president’s functional superiority in conducting foreign relations—unity, speed, secrecy, one-voice, and the like—supported an exclusive recognition power as opposed to merely an inherent one. But that is what the Supreme Court reasoned, and it did so in broad terms that favor the president. As Justice Antonin Scalia noted in dissent, “[f]unctionalism <em>of the sort the Court practices today</em> will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs” (emphasis added). In addition, as the court in <em>Zivotofsky II </em>noted, only the president has the power of formal diplomatic interactions with other nations. Such an interaction—conveying or depositing the formal notice of withdrawal—is probably needed for a treaty termination. All this said, courts have great discretion in applying functional considerations, so their application in the treaty termination context is difficult to predict.</p>
<p>There are other ways that <em>Zivotofsky II </em>might affect an analysis of the legality of the NATO Support Act. But the above analysis suffices to show that the act, if passed, would raise significant legal questions about the president’s constitutional authority to unilaterally terminate the North Atlantic Treaty.</p>
<p>The act might also create the possibility, for the first time in American history, of a court ruling on the merits of treaty termination. <em>Goldwater v. Carter </em>is usually thought to bar such adjudication. But there were only four votes in that case for the proposition that treaty termination was a political question. Justice Lewis Powell provided the fifth vote, and he noted only that courts should not adjudicate a treaty termination question “unless and until each branch has taken action asserting its constitutional authority,” and until “the political branches reach a constitutional impasse.” The NATO Support Act arguably satisfies these criteria, but it does not clearly do so. The stronger language of the Senate bill, noted above, would more clearly constitute the type of constitutional clash that Justice Powell envisaged. Such a clash would also be relevant under <em>Zivotofsky I</em>, where the Supreme Court ruled that the political question doctrine was no hurdle to the adjudication of a president’s disregard of a statutory directive related to foreign affairs. The NATO Support Act might therefore substantially increase the likelihood that courts would adjudicate the merits of a presidential treaty termination. Finding a plaintiff with standing to sue, however, would present additional challenges.</p>
Mon, 28 Jan 2019 07:43:18 -0500Curtis Bradley, Jack Goldsmith16529On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat?https://www.lawfareblog.com/what-grounds-can-fbi-investigate-president-counterintelligence-threat
<p>The New York Times <a href="https://www.nytimes.com/2019/01/11/us/politics/fbi-trump-russia-inquiry.html">reported</a> on Jan. 11 that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017. In other words, the FBI opened a counterintelligence investigation on the president.</p>
<p>The Times reports that my friend and former colleague, former FBI General Counsel James Baker, said during testimony to House investigators in October 2018 that “Not only would [firing Comey] be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” The Times paraphrases Baker’s testimony as follows: “If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved.”</p>
<p>If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize <em>possibly</em>, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent. The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.</p>
<p>The FBI defines its counterintelligence responsibilities <a href="https://www.fbi.gov/about/faqs/what-is-the-fbis-foreign-counterintelligence-responsibility">as follows</a>: “As the country’s lead counterintelligence agency, the FBI is responsible for detecting and lawfully countering actions of foreign intelligence services and organizations that employ human and technical means to gather information about the U.S. <em>that adversely affects our national interests</em>’” (emphasis added). The FBI <a href="https://www.fbi.gov/investigate/counterintelligence">sees its counterintelligence mission</a> as “identifying and neutralizing ongoing<em> national security threats</em>” (emphasis added). And indeed, this seems to be the FBI’s theory, according to the Times: The FBI opened a counterintelligence investigation of the president because, after Trump fired Comey, the FBI feared that Trump was a threat to the national security interests of the United States.</p>
<p>There is an unobjectionable sense in which the president can obviously be caught up in a counterintelligence investigation. We have known that Trump has been at least peripherally connected to one ever since Comey’s March 20, 2017<a href="https://www.nytimes.com/2017/03/20/us/politics/intelligence-committee-russia-donald-trump.html"> testimony</a>, and especially since Deputy Attorney General Rod Rosenstein<a href="https://www.justice.gov/opa/press-release/file/967231/download"> announced</a> that he was appointing Robert Mueller to conduct a counterintelligence investigation concerning:</p>
<blockquote><p>(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).</p>
</blockquote>
<p>As David Kris <a href="https://www.lawfareblog.com/why-fbis-investigation-president-was-unavoidable">notes</a>, we have long understood that this counterintelligence investigation would sweep up Trump’s relationship with Russia, and might include the question whether Trump might be compromised by the Russians. But the Times suggests that the FBI—at least after Comey was fired—took this investigation in a different direction, at least as a formal matter, based on the premise that the president was a threat to the national security interests of the United States.</p>
<p>It is not unusual for a president to make controversial policy decisions that could, in some quarters, be viewed as causing harm to the national security interests of the United States. For example, many saw George W. Bush’s decisions in the war on terrorism, or Barack Obama’s rapprochement with Iran and Cuba, as harming U.S. national security. Many believe that most of Trump’s foreign policy constitutes a similar threat—his attacks on allies and international institutions, his lies and erratic behavior, and the like. But the FBI obviously would not open a counterintelligence investigation for these matters.</p>
<p>They would not do so because these actions—and indeed the very determination of the U.S. interest in the conduct of U.S. foreign policy—are presidential prerogatives. The Supreme Court has often affirmed,<a href="https://scholar.google.com/scholar_case?case=15483881597751001372&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"> many</a><a href="https://supreme.justia.com/cases/federal/us/486/592/"> times</a><a href="https://supreme.justia.com/cases/federal/us/453/280/"> since</a><a href="https://supreme.justia.com/cases/federal/us/299/304/"> <em>United States v. Curtiss-Wright Export Corp.</em></a>, that it is the president himself, not the executive branch, who possesses “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Moreover, the president has plenary control within the executive branch of<a href="https://supreme.justia.com/cases/federal/us/484/518/"> the intelligence power and classified information</a>, which is defined,<a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html"> by the president</a>, in terms of harm to national security. In short, the president is the person constitutionally charged with determining what constitutes the national security interest and national security threats for the executive branch, which is where the FBI is located<em>. </em></p>
<p>Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.</p>
<p>On this view of the presidency, the perverse and very controversial steps Trump has taken toward Russia as president—his disclosure of classified information to the Russian ambassador in the Oval Office; his firing of Comey because of the Russia investigation; his persistent refusal to acknowledge what his director of national intelligence <a href="https://www.dni.gov/index.php/newsroom/press-releases/item/1888-statement-from-dni-coats">described</a> as Russia’s “ongoing, pervasive efforts to undermine our democracy”; and more—are all part of his ultimate discretion to conduct foreign policy and U.S. intelligence operations. Those actions, therefore, cannot pose a threat to a national security as a justification for a counterintelligence investigation. That may sound like an extreme conclusion, but it might follow from Article II, and I think (as I explain below) that not accepting this conclusion leads to equally if not more problematic consequences.</p>
<p>But first: This analysis raises the hard question of what executive branch officials are supposed to do if they have evidentiary reasons to believe the president of the United States is a Manchurian candidate in the sense of being an actual agent of a foreign power seeking to undermine the U.S. government. That is what a lot of Americans think of Trump, and it appears to be what the FBI suspected. Let’s stipulate for purposes of argument that Putin has compromising information on Trump, and that the FBI has Trump on tape unambiguously pledging fealty to Putin and promising to serve as his agent in carrying out a number of concrete orders from the Russian president to damage U.S. intelligence operations (for example, by exposing U.S. spies and U.S. intelligence operations). In this situation (as Chuck Rosenberg asked me in a <a href="https://www.lawfareblog.com/lawfare-podcast-special-edition-fbis-counterintelligence-investigation-donald-trump">great episode of the <em>Lawfare Podcast</em></a>), could the FBI seek a FISA warrant premised on the claim that the president was an agent of a foreign power?</p>
<p><iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/8233166/height/90/theme/custom/thumbnail/yes/preload/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe></p>
<p>The answer based on the analysis above may be “no,” at least to this extent: the FBI cannot act in a way that is legally premised on second-guessing the president’s national security bona fides. On this view, the FBI can fully investigate Russia’s interference with the 2016 election, including matters involving the president, as it has been doing for a while now. But it cannot cross the line of taking investigative steps premised on the president’s threat to national security. The Constitution leaves crossing that line up to Congress and the American people.</p>
<p>I am not sure this analysis or this conclusion is right—as I note, the situation in unprecedented in many ways. But I am confident that there is an important Article II question lurking here, and I suspect this question is what underlies what the Times twice said was a controversy among former FBI and Justice Department officials about the appropriateness of the FBI’s step.</p>
<p>In this light, the question arises: What turned on the step the FBI took? Did the bureau need to take that step? Was the FBI empowered to do something more and different by opening up a counterintelligence investigation against the president? Did it do so for a practical reason called for by the investigation, in order to ensure that it better understood what happened in 2016? Or was it just a formal bureaucratic step on which nothing of substance turned? This was a question that I raised on the podcast. None of my colleagues could say that anything at all of substance turned on the designation. (It was later suggested to me that the FBI’s step might have enabled enhanced investigative steps against the president; the matter is unclear.) If it is true that nothing of substance turned on the designation, then in one sense the step was meaningless, and the FBI was able to proceed to investigate the president’s connections to Russia and the 2016 election as before. But in another sense the step, even if legally available, was imprudent, for at least two reasons.</p>
<p>First, presidents and their delegates all the time engage in controversial contacts with foreign leaders and with their intelligence agents that sharply change the direction of U.S. foreign policy concerning matters that some critics believe shows undue fealty towards a foreign power. Think of some critics’ view of Nixon’s opening with China or, again, of Obama’s with Iran and Cuba. Or imagine that Rep. Tulsi Gabbard is elected in 2020 and brings controversial foreign policy views to the presidency.</p>
<p>One danger in the what the FBI apparently did is that it implies that the unelected domestic intelligence bureaucracy holds itself as the ultimate arbiter—over and above the elected president who is the constitutional face of U.S. intelligence and national security authority—about what actions do and don’t serve the national security interests of the United States. It further suggests that the FBI claims the authority to take this step on the basis of the president’s exercise of another clear presidential prerogative—the firing of the FBI director in connection with the Russia investigation, which the Times says was the final predicate for the FBI’s action. And it took this step did without any formal guidance on the books for applying counterintelligence rules to the president, akin to the <a href="https://www.law.cornell.edu/cfr/text/28/part-600">special counsel regulations</a>. Beyond the organizational and legal questions raised by these steps, if the FBI can open up a secret counterintelligence investigation of the president based on its belief that his actions threaten national security, it would chill controversial presidential foreign policy actions that the Constitution says are solely the president’s decisions to make, for better and worse.</p>
<p>Second, as my <em>Lawfare </em>colleague Matt Tait<a href="https://twitter.com/pwnallthethings/status/1083918676162695168"> noted</a>, “[Y]ou’d much rather live in a country where elected branches are a check on the national security establishment than the other way around.” I do not doubt the integrity of the contemporary FBI; quite the contrary. But at one time, under J. Edgar Hoover, it secretly collected intelligence information on the president and other elected officials and used that secret information to influence the behavior of those officials. This is an ever-present danger with any intelligence bureaucracy in a democracy. A second adverse effect of the FBI’s counterintelligence investigation of the president is that it gives credence to these types of concerns about the contemporary FBI—especially if the FBI opened a counterintelligence file on the president and did not notify him, as I suspect happened in the Trump case.</p>
<p>In light of these implications, the question is whether the FBI’s step outlined in the Times’s story achieved any affirmative investigative goal. If it did not—if the investigation of Trump could have proceeded as a component of the Russia investigation without the FBI purporting to determine that the president is a national security threat—then this step strikes me as deeply imprudent. To be sure, the Times story also suggested that the decision was made in the confused and uncertain days after the Comey firing, and that it is “unclear whether Mr. Mueller is still pursuing the counterintelligence matter,” whatever that means. (Recall that the events described in the Times story occurred before Mueller was appointed, at about the same time that Deputy Attorney General Rod Rosenstein, in conversations with Acting FBI Director Andrew McCabe, <a href="https://www.nytimes.com/2018/09/21/us/politics/rod-rosenstein-wear-wire-25th-amendment.html">reportedly suggested</a> “that he secretly record President Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.”) I hope that there is less to this story than meets the eye: that the story highlights a minor procedural step in a time of perceived crisis that was quickly deemed unnecessary or inappropriate and was reversed or dropped, and that the Times is now making it into a bigger deal than it was and is.</p>
<p>The Times story raises other hard questions. For example, what would happen if Trump, once he learned about the counterintelligence investigation of him, ordered it to cease on the grounds that he deemed it contrary to the national security interests of the United States? Would the FBI cease its investigation, or would it deem the president’s order, like its interpretation of the Comey firing, as further evidence of the president’s threat to the national security interests of the United States? Perhaps the official ordered to end the investigation would at that point resign, or would continue with the investigation until fired by the president. But these questions highlight the fraught position the FBI adopted in opening a counterintelligence investigation of the president based on its leadership’s judgment that he is a threat to the national security.</p>
<p>There are also hard questions on the other side. What exactly is the FBI supposed to do if it stumbles onto unambiguous evidence that the president is compromised, and acting on behalf of a foreign power, and has pledged to that foreign power to blow U.S. assets? As I noted above, I don’t think there is a problem if the FBI, to the president’s knowledge, investigates the president’s actions as a collateral component of a broader counterintelligence investigation of a foreign operation. This has been happening for a while and I see no objection to the Mueller investigation as described in Rosenstein’s order. The dangerous point comes if the FBI opens an investigation of the president, unbeknownst to him, based on its perception of his threat to national security. The line between these two things might be fudgable and the FBI might be able to collect all, or almost all, the information it needs without crossing the line. But it might also be that in some circumstances the only thing the FBI can do is to report what it stumbled upon to Congress and the American people and let them decide what to do.</p>
<p>As David Kris said at the end of the podcast, and I paraphrase here, there is no elegant or satisfying solution to the problem of a president about whom plausible questions are raised concerning his ultimate loyalty to the United States. I also agree with David that the conundrum the FBI found itself in in the spring of 2017 was almost entirely attributable to the president’s norm-defying (to put it mildly) behavior. But there is more at stake than just this president. As I have noted many times, one of President Trump’s most nefarious skills is to act in norm-busting ways that cause people and institutions to respond to him in norm-busting ways. If indeed the FBI took the unprecedented step of opening a counterintelligence investigation directed at the president premised on his threat to national security, I hope the bureau had much stronger evidence for doing so than the Times story provided—and I hope that something of investigative substance actually turned on it. Otherwise, the step strikes me as deeply imprudent.</p>
Sun, 13 Jan 2019 09:16:25 -0500Jack Goldsmith16455Executive Agreements: International Lawmaking Without Accountability?https://www.lawfareblog.com/executive-agreements-international-lawmaking-without-accountability
<p><em>This post is <a href="https://www.justsecurity.org/?p=62180&amp;preview=true">cross-posted</a> on </em>Just Security.</p>
<p>In a <a href="https://www.lawfareblog.com/death-article-ii-treaties">post</a> last month, we described the sharp decline in the presidential use of Article II treaties—reaching a new low in the Trump administration, which so far has submitted only one such treaty to the Senate. This decline does not mean that the United States has stopped concluding international agreements. In fact, the United States makes dozens of binding international agreements each year—often more than 100—but it usually does so as “congressional-executive agreements” (i.e., agreements authorized by statute) rather than as Article II treaties. The United States has thus effectively shifted to an administrative regime for making international agreements, but it has yet to craft an adequate system of oversight and accountability to go along with that regime.</p>
<p>One of us (Hathaway) has previously <a href="https://www.yalelawjournal.org/pdf/689_s63kxg7m.pdf">argued</a> that the Article II process is outdated and that it is normatively better for agreements to be subjected to majority votes in both houses of Congress rather than a supermajority vote in the Senate. Importantly, however, that is not what is happening. “Ex post” congressional-executive agreements (those approved by Congress after negotiation) are extremely rare—even rarer that Article II treaties—and are mainly used for trade agreements. (The Trump administration’s proposed United States-Mexico-Canada Agreement which is designed to replace NAFTA, will go through this process.) Instead, almost all congressional-executive agreements are based on purported “ex ante” statutory authorization. These agreements are usually based on statutes enacted many years or even decades before the agreement, and they do not receive any meaningful after-the-fact review or approval by the legislature.</p>
<p>The Trump administration has continued this practice, as is evident from perusing the State Department’s online database, <a href="https://www.state.gov/s/l/treaty/tias/">Texts of International Agreements to Which the U.S. is a Party</a> (TIAS). This database is the only current public database that includes the text of such agreements, but it is far from complete. As the site itself notes, classified agreements are exempted from reporting. And the relevant reporting <a href="https://www.law.cornell.edu/uscode/text/1/112a">statute</a> does not require publication even of all non-classified agreements. Keeping in mind that the precise numbers of agreements are difficult to discern, in the first year of the Trump administration, there were 104 agreements reported, according to the database. That is consistent with prior years (the average for the years in the database is 99 agreements per year). In 2018, however, there were only 39 agreements reported. It is hard to know whether that reflects a real decline, if the site is simply not up-to-date, or if a lower percentage of the agreements made have been reported through the database. (This uncertainty itself illustrates the inadequate transparency of the process.)</p>
<p><em>Ex ante</em> congressional-executive agreements are akin to many administrative regulations in that they are often based on vague or broad statutory authorizations, and they are concluded by a variety of executive branch agencies. Some of the same concerns raised in the administrative regulation context—legality, interest group capture, imprudent or corrupt bureaucratic action, and the like—arise as well in the context of ex ante congressional-executive agreements. But there is at least one key difference: Administrative regulations are governed by a complex administrative law framework, but <em>ex ante</em> congressional-executive agreements are not governed by an administrative law or any other accountability framework beyond an incomplete and under-enforced reporting requirement.</p>
<p>Foreign affairs matters were expressly <a href="https://www.law.cornell.edu/uscode/text/5/553">exempted</a> from the Administrative Procedure Act. As a result, there is no notice-and-comment process for the making of <em>ex ante </em>congressional-executive agreements. Nor is there any statutorily-prescribed judicial review to ensure that the executive stays within the terms of the statutory delegations. And the reporting system that is currently in place (including in the TIAS, referred to above) is inadequate along a number of dimensions, as the three of us have <a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf">explained</a> in <a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf">prior writings</a>. Among other things, the reporting is incomplete and often untimely, it lumps Article II treaties and executive agreements together and fails to distinguish among the various types of executive agreements, and it fails to provide any account to the public of the legal authority that purportedly supports such agreements.</p>
<p>The <a href="https://www.law.cornell.edu/uscode/text/1/112b">Case Act</a>, enacted in 1972, recognized that executive agreements were becoming the dominant means by which the executive concluded international agreements, and Congress opted for transparency in an effort to deter problematic conduct and allow for monitoring of potential policy and legal problems. The principal mechanism of the Case Act framework is the requirement that the executive branch report executive agreements to Congress within 60 days of concluding them. As one of us explained in a prior <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1860&amp;context=fss_papers">article</a>, early on, this worked reasonably well—as most such delegations of authority were accompanied by legislative veto provisions that did not require presentment to the president. After the Supreme Court in <em>INS v. Chadha</em> found such vetoes unconstitutional, Congress responded by stripping the legislative vetoes from the statutes, leaving the bare delegations of authority in place. As a result, the mere requirement of disclosure did Congress little good: Even if it objected to an agreement, there was almost nothing Congress could do about it. (Repealing the agreement would likely require assembling veto-proof majorities in both houses, a near-impossible feat.)</p>
<p>One might think that even if Congress cannot repeal agreements, the disclosure to Congress required by the Case Act and the publication of agreements provide sufficient accountability. But there are reasons to think that is not true. To begin with, the State Department does an uneven job of collecting internally and disclosing to Congress and the public the information about agreements made by the United States. As we will explain more fully in a later post, the TIAS does not appear to be complete, nor were the earlier online Case Act <a href="https://www.state.gov/s/l/treaty/caseact/">reports</a> provided by the State Department. In addition, the Brennan Center for Justice <a href="https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law.pdf">documented</a> that there are large numbers of “secret” executive agreements—that is, agreements that are classified. And even when the agreements themselves are reported to the public, the legal basis is not. Pursuant to a <a href="https://www.law.cornell.edu/cfr/text/22/181.7">regulation</a> that took effect in 1981, when the executive branch reports its executive agreements to Congress, it provides a citation of the legal authorities that it believes allow it to conclude the agreement without seeking senatorial advice and consent. But while Congress is provided with that information, the public is not. The cover memos that accompany the Case Act reports are always stripped from the agreements before they are made public.</p>
<p>It is long past due for Congress to take a close look at the process for making international agreements. These agreements are essential to the effective functioning of the United States in the world, but they should be made in a way that allows the American people to understand the commitments made on their behalf. Despite the growth and developing nature of U.S. agreement-making processes, Congress has not seriously revisited the Case Act regime, and it has never sought to bring administrative rigor to the agreement-making process. It’s time for that to change.</p>
Wed, 09 Jan 2019 10:30:01 -0500Curtis Bradley, Jack Goldsmith, Oona Hathaway16430A Qualified Defense of the Barr Memo: Part Ihttps://www.lawfareblog.com/qualified-defense-barr-memo-part-i
<p>Daniel Hemel and Eric Posner have harshly criticized William Barr’s <a href="https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf#page=1">memo</a> on Special Counsel Robert Mueller’s obstruction of justice theory. They say (in the <a href="https://www.nytimes.com/2018/12/21/opinion/william-barr-attorney-general-memo-trump.html">New York Times</a>) that the memo “seriously damages [Barr’s] credibility and raises questions about his fitness for the Justice Department’s top position” and (later, on <em><a href="https://www.lawfareblog.com/yes-bill-barrs-memo-really-wrong-about-obstruction-justice">Lawfare</a></em>) that the memo is “poorly reasoned.”</p>
<p>In my view, Hemel and Posner’s arguments don’t support these conclusions. I’m not going to spend much time on the proper way to parse the words of the obstruction statute, as Barr and the coauthors do. I agree with <a href="https://www.justsecurity.org/61975/legal-arguments-bill-barrs-memo-mueller-investigation/">Marty Lederman</a> that much of this fine-grained analysis is beside the point because Mueller is almost certainly not considering asking a grand jury to indict President Trump for a violation of a criminal law on obstruction of justice. I instead want to focus on a few broader principles of constitutional law and statutory interpretation in Barr’s memo and in Hemel and Posner’s responses. My primary aim is to show that Barr’s views, far from crazy, have significant support in Supreme Court case law and executive branch precedent, and that the real significance of the Barr memorandum may be its possible use in support of the impeachment of President Trump. A later post will address other issues in the Barr memorandum.</p>
<p align="center">***</p>
<p>Hemel and Posner say that Barr’s memo shows he will “do the president’s bidding,” and that “he has already made up his mind about the investigation and wanted to make sure that President Trump knew it.”</p>
<p>These conclusions cannot be reconciled with Barr’s statement up front that he is “in the dark about many facts,” and with his acknowledgment that the President of the United States can, in a number of factual circumstances, commit obstruction of justice. As Barr says:</p>
<blockquote><p>Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion—such as his complete authority to start or stop a law enforcement proceeding—does not involve commission of any of these inherently wrongful, subversive acts.</p>
</blockquote>
<p>This is a broad statement about presidential exposure to criminal obstruction of justice. As Marcy Wheeler has <a href="https://www.emptywheel.net/2018/12/20/emmet-flood-steps-in-it-again-william-barrs-memo-makes-compelling-case-that-trump-must-be-impeached/">noted</a>, and as I explain further below, this statement holds potential peril for Trump. Wheeler thinks that Trump has suborned false statements from former national security adviser Michael Flynn that, under Barr’s theory, counts as obstruction of justice. She may be right—the answer is not yet clear. The point for now is that Barr’s memo in no way rules out this conclusion and, indeed, invites it, depending on the facts—which Barr concedes he does not know. This shows that Barr has not, as Hemel and Posner allege, “made up his mind about the investigation.”</p>
<p>Barr’s memo definitely does not rule out the possibility that Trump obstructed justice. Rather, it argues against a particular theory of obstruction that Barr believes Mueller is pursuing. That theory is that Trump is being pursued for obstruction of justice under <a href="https://www.law.cornell.edu/uscode/text/18/1512#c">18 U.S.C. §1512(c)(2)</a> <em>not </em>on the basis of a “wrongful act of evident impairment,” but rather simply because he expressed “hope” that former FBI director James Comey could eventually “let ... go” of the FBI’s investigation of Flynn and because he fired Comey. Subsection (c) of the statute provides:</p>
<blockquote><p>(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].</p>
</blockquote>
<p>Barr clearly states the theory of subsection (c)(2) that is the target of his analysis as the following: “[S]imply by exercising his Constitutional discretion in a facially-lawful way—for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power—a President can be accused of committing a crime based solely on his subjective state of mind.” This theory, and only this theory, is what Barr is worried about.</p>
<p align="center">***</p>
<p>Barr argues that this theory cannot render Trump criminally liable under subsection (c)(2) because “statutes that do not <em>expressly </em>apply to the President must be construed as not applying to the President <em>if such application would involve a possible conflict with the President’s constitutional prerogatives</em>” (my emphasis at end). The predicate here—a possible conflict with presidential prerogatives—is crucial to the application of the plain-statement rule, as Barr makes clear. Barr does not argue that every application of (c)(2) to the president would implicate the plain-statement rule. Rather, he limits his argument to applications of the statute to “facially-lawful exercises” of the president’s constitutional discretion.</p>
<p>Hemel and Posner never respond to this argument directly. Rather, their central contention is that if Barr is right about the plain-statement rule’s application to the obstruction statute, “then the president would be shielded from a host of uncontroversial laws, including the federal bribery statute, which does not mention the president.” The authors thus treat Barr’s argument as a type of <em>reductio ad absurdum</em>, as if application of the plain-statement rule to exclude statutes from applying to the president in certain circumstances would be absurd or unacceptable.</p>
<p>Yet far from being absurd or unacceptable or even unusual, the Barr argument is commonplace. A 1995 Office of Legal Counsel (OLC) <a href="https://www.justice.gov/file/20126/download">opinion</a> written by then-Assistant Attorney General Walter Dellinger to Bill Clinton’s White House counsel correctly stated that the plain-statement requirement that Barr invoked “has been applied frequently by the Supreme Court as well as the executive branch with respect to statutes that might otherwise be susceptible to an application that would affect the president’s constitutional prerogatives, were one to ignore the constitutional context.”</p>
<p>The Dellinger opinion cited six Supreme Court decisions (<em><a href="https://supreme.justia.com/cases/federal/us/505/788/">Franklin v. Massachusetts</a></em>, <em><a href="https://supreme.justia.com/cases/federal/us/491/440/">Public Citizen v. Department of Justice</a></em>, <em><a href="https://supreme.justia.com/cases/federal/us/509/155/">Sale v. Haitian Centers Council, Inc.</a></em>, <em><a href="https://www.law.cornell.edu/supremecourt/text/457/731">Nixon v. Fitzgerald</a></em>, <em><a href="https://caselaw.findlaw.com/us-supreme-court/259/326.html">French v. Weeks</a></em> and <em><a href="https://supreme.justia.com/cases/federal/us/341/367/">Tenney v. Brandhove</a></em>) that invoked a version of the plain-statement canon. It also cited nearly a half-dozen executive branch opinions invoking the canon to conclude that several statutes—the Age Discrimination in Employment Act, the criminal contempt of Congress statute, the Anti-Lobbying Act, a conflict-of-interest statute, and more—did not apply to the president when they touched on presidential prerogatives. And those were just the judicial and executive branch opinions up through 1995. There have been many more since then. What Hemel and Posner see as a shocking implication of Barr’s argument is not shocking at all. It is, rather, an implication that has been embraced by the Supreme Court and the executive branch for decades.</p>
<p align="center">***</p>
<p>But what about the bribery statute that Hemel and Posner make such a fuss about? Barr’s memo did not mention the statute. Yet Hemel and Posner say (without ever exactly explaining why) that Barr’s argument implies that the bribery statute does not apply to the president. They think this is an absurd conclusion and list a parade of presidential bribery horribles. And they add (in response to an <a href="https://www.nationalreview.com/2018/12/william-barr-attorney-general-nomination/">argument</a> by Andy McCarthy) that “the Department of Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President.”</p>
<p>But the bribery statute does not have the import that Hemel and Posner suggest. The quoted OLC position on the bribery statute’s application to the president comes from the 1995 Dellinger OLC opinion, which is a full-throated defense of the presidential plain-statement rule that Barr embraces and that Hemel and Posner think is unacceptable. Also, OLC’s conclusion about the bribery statute’s application to the president was premised on its view that the bribery statute “<em>raises no separation of powers questions were it to be applied to the President</em>” (my emphasis) because it “confers no power in the President to receive bribes” and “specifically forbids any increase in the President’s compensation for his service while he is in office, which is what a bribe would function to do.”</p>
<p>Barr’s argument is not affected by this analysis. His argument is that some applications of the very different obstruction statute <em>do</em> raise separation of powers questions. Hemel and Posner thus invoke a statutory example where OLC says the plain-statement rule <em>does not</em> apply (bribery) to refute Barr’s argument about a different statute (obstruction) that, Barr says, <em>does</em> implicate the canon. Once again, they do not engage Barr’s argument.</p>
<p align="center">***</p>
<p>Perhaps the hardest problem in this area of law is to figure out when a presidential action is burdened by a statute in a way that implicates the plain-statement rule. One reason why this is hard is that the executive branch and the Supreme Court have used slightly but importantly different formulations for the triggering criteria for the plain-statement rule. Barr says the canon is triggered by “facially-lawful” exercises of the president’s constitutional discretion. Dellinger said in his 1995 opinion that the canon applies if application of the statute “would involve a possible conflict with the President’s constitutional prerogatives” or “would arguably limit the President’s constitutional role” or “would raise a serious question under the separation of powers.” (It is unclear to me which among Dellinger’s various formulations and Barr’s formulation is most favorable to the president. Perhaps it doesn’t matter, since Barr relies heavily on the Dellinger opinion and clearly means to apply the same canon.) There are other formulations in OLC opinions and Supreme Court decisions. These different formulations make it hard to know the canon’s precise scope.</p>
<p>A second and related reason for uncertainty in this area is that the same presidential action can be construed—depending on the facts, and especially facts about presidential motive—as a facially lawful constitutional prerogative of the president and as an action that lies beyond the president’s constitutional discretion or is facially unlawful. In their op-ed and especially in their <em>Lawfare</em> follow-up, Hemel and Posner pose a number of challenging hypotheticals that turn on this point. For example, they ask whether Bill Clinton would have obstructed justice on Barr’s theory if he offered Monica Lewinsky the ambassadorship to Switzerland in exchange for her lying under oath. This is a problem, they imply, because the same act is both a facially lawful presidential prerogative (appointing ambassadors), which Barr says is lawful, and a knowing subornation of perjury, which Barr says is obstruction.</p>
<p>I am confident that Barr has a good answer to this hypothetical, probably along the lines that it involves a facially unlawful act (suborning perjury), which the Mueller theory he was addressing did not. Indeed, the distinction is pretty clear in the long paragraph quoted above where Barr explains when and why the president is sometimes subject to the obstruction statute. (For a good, concise explanation of this distinction that is consonant with Barr’s memorandum, see <a href="http://yalejreg.com/nc/trumps-obstruction-of-justice-defense-and-the-bribery-counterargument/">this</a> piece by Andy Grewal.) Hemel and Posner’s hypotheticals raise good questions about this whole body of constitutional law and statutory interpretation. But any difficulties posed by their hypotheticals do not detract from the fact that, contrary to their strong implication, the law that Barr was applying is clearly settled and his argument was not in any way radical.</p>
<p>Moreover, there are difficult hypotheticals on the other side of the argument. Hemel and Posner emphasize that if acts that can be both facially lawful and evidence-impairing are immunized, the president might be able to get away with obstructing justice. But as Barr emphasizes, if the president is subject to scrutiny for facially lawful exercises of constitutional prerogative that, depending on motivation alone, might also be construed as obstruction of justice, then core discretionary executive power is at risk of being regulated and thus chilled. Barr has a long discussion of this point, and a number of hoary hypotheticals, on <a href="https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf#page=15">pages 15 and 16</a> of his memorandum that I will not summarize here. His bottom line is as follows:</p>
<blockquote><p>The prospect of criminal prosecution based solely on the President’s state of mind, coupled with the indefinite standards of ‘improper motive’ and ‘obstruction,’ would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination the President’s (or his subordinate’s) subjective state of mind in exercising that discretion.</p>
</blockquote>
<p>As the competing hypotheticals imply, the application of the plain-statement rule to the exercise of facially lawful presidential actions raises very hard questions about how to reconcile presidential prerogatives with principles of presidential accountability. For the most part, the Supreme Court and the executive branch have come down on the side of protecting presidential prerogatives (i) when they are burdened in any plausible way and (ii) when Congress has not otherwise spoken plainly to regulate those prerogatives (as, for example, Congress did in the independent counsel statute at issue in <em><a href="https://www.law.cornell.edu/supremecourt/text/487/654">Morrison v. Olson</a></em>, but did not do in the obstruction of justice statute). There are good justifications for this important separation of powers rule. Congress should (ideally at least) engage in focused deliberation and express action before it burdens presidential powers, and courts should not apply statutes to burden the presidency absent evidence that Congress actually deliberated on the issue and applied the statute to the president.</p>
<p>In sum, Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of <a href="https://www.lawfareblog.com/bill-barrs-very-strange-memo-obstruction-justice">Mikhaila Fogel and Benjamin Wittes</a> and of <a href="https://www.justsecurity.org/61975/legal-arguments-bill-barrs-memo-mueller-investigation/">Marty Lederman</a>.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he <a href="https://www.vox.com/policy-and-politics/2018/12/20/18150165/mueller-barr-memo-rosenstein-obstruction-trump">stated</a> that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.</p>
<p>If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe <em>and </em>impeachment in a very public way.”</p>
Fri, 04 Jan 2019 09:20:33 -0500Jack Goldsmith16399The Failure of the United States’ Chinese-Hacking Indictment Strategyhttps://www.lawfareblog.com/failure-united-states-chinese-hacking-indictment-strategy
<p>Just before Christmas, the U.S. Department of Justice unsealed an <a href="https://www.justice.gov/opa/press-release/file/1121706/download">indictment</a> against two Chinese nationals who <a href="https://www.justice.gov/opa/pr/two-chinese-hackers-associated-ministry-state-security-charged-global-computer-intrusion">allegedly</a> conducted a twelve-year “global campaign[] of computer intrusions” to steal sensitive intellectual property and related confidential business information from firms in a dozen states and from the U.S. government. According to the indictment, the defendants conducted these acts as part of the APT10 hacking group “in association with” the Chinese Ministry of State Security.</p>
<p>This is only the latest round of indictments against Chinese nationals for computer hacking in the United States. The first one occurred in May 2014, when the Justice Department indicted <a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor">five </a><a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor">People</a><a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor">’s Liberation Army (</a><a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor">PLA</a><a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor">)</a><a href="https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor"> officers</a> on economic espionage charges. Next, in November 2017, the department unveiled an <a href="https://www.justice.gov/opa/press-release/file/1013866/download">indictment</a> of three Chinese nationals employed by a Chinese cybersecurity firm for cybertheft of confidential business information from several firms after receiving “no meaningful response” for assistance from the Chinese government. In October of this year, the Justice Department <a href="https://www.nytimes.com/2018/10/30/us/politics/justice-department-china-espionage.html">unsealed an indictment</a> against two Chinese intelligence officers for cybertheft of intellectual property and business secrets from thirteen U.S. firms. And on Nov. 1, the department <a href="https://www.justice.gov/opa/pr/prc-state-owned-company-taiwan-company-and-three-individuals-charged-economic-espionage">charged</a> a Chinese state-owned company and three individuals with stealing trade secrets from American chipmaker Micron. </p>
<p>The cyber indictment strategy is a central element of the United States’ response to the ravages of theft and destruction by China that it has suffered in the cyber realm in the last decade. Is the indictment strategy working? It is hard to answer this question with certainty, because it is not clear how that strategy might be working in tandem with broader trade measures and with secret cyber operations. But viewed narrowly, on the basis of the public record in light of its publicly stated aims, the indictment strategy appears to be a magnificent failure.</p>
<p align="center">***</p>
<p>First consider deterrence, an <a href="https://foreignpolicy.com/2015/09/02/the-u-s-hoped-indicting-5-chinese-hackers-would-deter-beijings-cyberwarriors-it-hasnt-worked/">oft-stated aim</a> of such indictments. The indictments rarely result in prosecution but do expose the alleged wrongdoers publicly, prevent them from traveling and perhaps embarrass them in certain circles. These costs are not nothing; would-be state-sponsored cyber-intruders and their principals surely take them into account. But it has always been unclear how these relatively miniscule costs are supposed to influence Chinese macro-decisionmaking when the benefits of the cyber-intrusions by the Chinese—untold billions of dollars in commercial benefits, plus a massive reticulate database of information on American citizens with unending intelligence and other benefits—are so huge.</p>
<p>Nonetheless, many were optimistic that the indictment strategy would work. The initial 2014 indictment was later credited, at least in part, with influencing China’s President Xi Jinping to <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-united-states">agree</a> with President Obama, in September 2015, that China would not “conduct or knowingly support cyber-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors.” Many commentators believed this legally non-binding agreement established a norm that caused China to tamp down on its cybertheft inside the United States. “The indictments had an amazing effect in China, more than we could have hoped for,” <a href="https://www.washingtonpost.com/world/national-security/following-us-indictments-chinese-military-scaled-back-hacks-on-american-industry/2015/11/30/fcdb097a-9450-11e5-b5e4-279b4501e8a6_story.html?utm_term=.0dcf083d8408">said</a> James A. Lewis in November 2015, capturing conventional wisdom. And there was indeed, according to many <a href="https://www.fireeye.com/content/dam/fireeye-www/current-threats/pdfs/rpt-china-espionage.pdf">sources</a>, a tamp-down in the volume of state-sponsored cybertheft from China in the years after the Obama-Xi agreement. </p>
<p>But state-sponsored commercial cybertheft from China never came close to ceasing, as the Xi-Obama deal requires. Indeed, several criminal incidents detailed in the 2017 and 2018 indictments occurred after Xi’s 2015 pledge, as did (for example) parts of the China hack of <a href="https://www.nytimes.com/2018/12/11/us/politics/trump-china-trade.html">Marriott</a>, which vacuumed over three hundred million passport numbers among other valuable information. It is now better understood that the apparent slowdown in China’s cybertheft after the 2014 agreement was more likely due to two factors: (1) China’s hackers grew more operationally sophisticated and began to <a href="https://www.technologyreview.com/s/602705/the-decline-in-chinese-cyberattacks-the-story-behind-the-numbers/">hide their tracks</a> (or their connections to state entities) better; and (2) Xi’s centralization reforms and <a href="https://www.lawfareblog.com/us-attribution-chinas-cyber-theft-aids-xis-centralization-and-anti-corruption-efforts">anti-corruption campaign</a> cracked down on unauthorized cybertheft freelancing. Moreover, for whatever reason—a ramp-up by China, or better detection by the United States, or both—the U.S. government has been <a href="https://www.reuters.com/article/us-usa-cyber-china/u-s-warns-of-new-hacking-spree-from-group-linked-to-china-idUSKCN1ME01L">reporting</a> that in the last year, China’s commercial theft inside the United States has gone full throttle. In light of the continuing raft of Chinese commercial cybertheft after 2014, these two factors suggest that the 2014 deal didn’t do much. As a U.S. Trade Representative investigation <a href="https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF">concluded</a> almost a year ago, “the evidence indicates that cyber intrusions into U.S. commercial networks in line with Chinese industrial policy goals continue.”</p>
<p>With these developments in mind, it is hard not to conclude that the Justice Department’s deterrence-by-indictment efforts have failed. And the scale of the failure is large. The head of the FBI’s counterintelligence division <a href="https://www.washingtonpost.com/world/national-security/top-fbi-official-warns-of-strategic-threat-from-china-through-economic-and-other-forms-of-espionage/2018/12/12/38067ee2-fe36-11e8-83c0-b06139e540e5_story.html?utm_term=.b90bd38b822f">testified</a> last month that China’s “economic aggression, including its relentless theft of U.S. assets, is positioning [it] to supplant [the United States] as the world’s superpower.”</p>
<p>Nor has the indictment strategy worked to serve other aims. One such aim is to establish a norm against state-sponsored commercial cybertheft to help national firms. The continuance of massive theft by China and other countries with little penalty shows that the norm simply does not exist. </p>
<p>Another aim of the indictment strategy is to demonstrate that the U.S. government can burrow deeply into foreign intelligence services and related foreign activities and pick out individuals and their activities with extraordinary precision. Such public attribution might have a minor deterrent effect; it can be scary to know that the United States can watch anything. It might also help generate a broader public understanding about Chinese hacking in the hope of galvanizing support among U.S. allies and the public for a diplomatic push against China. But these gains to the United States of attribution are, again, offset by the massive benefits reaped on the other side. Also, showing off the fruits of U.S. surveillance capacities in this way must—at least at the margins, if not more deeply—compromise those capacities.</p>
<p>Public attribution via indictments and other mechanisms without a material response also has another underappreciated adverse impact. When the main public response to cybertheft that has reached crisis proportions is to identify the perpetrators but not punish them, the main signal to adversaries (especially third parties who are watching) is that the United States is extraordinarily defenseless. As one of us once <a href="https://www.hoover.org/sites/default/files/research/docs/381100534-strengths-become-vulnerabilities.pdf">wrote</a>:</p>
<blockquote><p>The publication of the many losses [due to cybertheft], followed by the invariably weak or nonexistent public response, demonstrates credibly that U.S. defenses are poor and that the U.S. government is either unable or unwilling to retaliate even in the face of massive cyber losses. This combination of events thus emboldens adversaries and weakens deterrence. Even if the United States is robustly engaging in retaliatory covert or clandestine responses, those responses cannot contribute to deterrence against the many third parties who are watching, and indeed in context detracts from it. … Unless a nation is able to effectively redress a cyber intrusion, it can be harmful or self-defeating to publicize it, since public knowledge of loss and the failure to respond effectively invite more attacks.</p>
</blockquote>
<p>To get a sense of the problem, imagine a series of physical thefts inside the United States amounting to billions of dollars of losses, to which the government proudly responds by indicting a small number of the perpetrators and prosecuting few if any of them. Such a strategy would embarrass the government and invite more criminal activity. Something just like that appears to be going on in response to the U.S. indictment strategy, at least if it is considered alone.</p>
<p align="center"><strong>***</strong></p>
<p>To acknowledge the failure of the U.S. indictment strategy on its own terms is not to discount the complexity of the challenge. American officials charged with determining how to respond to rampant cybertheft face very difficult foreign policy tradeoffs. And they are deploying more forceful tools than mere indictments to meet the China cybertheft threat.</p>
<p>One more forceful tool the United States could use against China is meaningful economic sanctions on the perpetrators and beneficiaries of commercial cybertheft. The U.S. Treasury has had <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=61babe18319404dc7aa7a90afe90b77d&amp;mc=true&amp;node=pt31.3.578&amp;rgn=div5">sanctions regulations</a> in place for “malicious cyber-enabled activities” since <a href="https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cyber_eo.pdf">April 2015</a>. For over three years, the United States has <a href="https://www.washingtonpost.com/world/national-security/administration-developing-sanctions-against-china-over-cyberespionage/2015/08/30/9b2910aa-480b-11e5-8ab4-c73967a143d3_story.html?utm_term=.5927afce5a73">threatened</a> to deploy these sanctions against Chinese firms and persons, and it has already done so in connection with cyber activity by <a href="https://www.meritalk.com/articles/what-iran-sanctions-mean-for-cybersecurity/">Iran</a>, <a href="https://www.reuters.com/article/us-cyber-northkorea-sanctions/u-s-treasury-sanctions-north-korean-hacker-company-for-cyber-attacks-idUSKCN1LM2I7">North Korea</a>, and <a href="https://www.reuters.com/article/us-usa-russia-sanctions-treasury/u-s-imposes-fresh-sanctions-for-russian-cyber-related-activity-idUSKCN1L61FB">Russia</a> (including <a href="https://www.wsj.com/articles/u-s-rolls-out-new-guidelines-on-russia-sanctions-policy-1537463788">sanctions</a> against a Chinese research unit in connection with a sanctions regime <em>against Russia</em>). And yet despite continuing complaints and threats, the U.S. government has not yet pulled the trigger and issued economic sanctions against China in response to its massive commercial cybertheft. </p>
<p>Aside from the difficulty of tailoring such sanctions to effectively deter those most responsible, deploying the sanctions would risk inviting retaliation against U.S. multinational firms that are vitally dependent on access to China’s markets. This is particularly salient in the Chinese context, as Beijing historically has not been shy about geopolitically motivated economic <a href="https://www.uscc.gov/sites/default/files/Research/Report_China%27s%20Response%20to%20THAAD%20Deployment%20and%20its%20Implications.pdf">retaliation</a> against foreign companies operating in China. Indeed, it appears that concerns about retaliation by China may have driven the U.S. government’s decision not to couple the latest Justice Department indictments with more aggressive measures. According to the Washington Post, the Trump administration had <a href="https://www.washingtonpost.com/world/national-security/trump-administration-to-condemn-china-over-hacking-and-economic-espionage-escalating-tensions-between-superpowers/2018/12/11/699e375c-f985-11e8-8d64-4e79db33382f_story.html?utm_term=.62ac285c09c2">considered</a> imposing financial sanctions on Chinese entities implicated in the hack, but that proposal was <a href="https://www.washingtonpost.com/world/national-security/us-and-more-than-a-dozen-allies-to-condemn-china-for-economic-espionage/2018/12/20/cdfd0338-0455-11e9-b5df-5d3874f1ac36_story.html?noredirect=on&amp;utm_term=.9d86e2c98cf4">blocked</a> by Treasury Secretary Steven Mnuchin over fear of derailing the ongoing U.S.-China trade talks.</p>
<p>It is possible that the latest exercise of restraint was a tactical decision in a broader initiative. The United States might have kept the threat of narrowly tailored sanctions for cybertheft in its pocket as leverage while Washington tries to negotiate major concessions from Beijing in the 90-day window of <a href="https://www.scmp.com/economy/china-economy/article/2179293/china-says-new-progress-has-been-made-us-trade-war-talks">negotiations</a> Trump and Xi agreed to at the G20 summit. Indeed, those negotiations are in part about China’s theft of U.S. intellectual property (IP) secrets. President Trump and his advisors have <a href="https://www.usatoday.com/story/news/politics/2018/11/28/trade-war-china-donald-trump-theft-intellectual-property-trade-secrets/2124428002/">often</a> cited such theft as one reason for the trade sanctions, and the Office of the U.S. Trade Representative’s <a href="https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF">Section 301 report</a> on Chinese economic practices makes clear that IP theft is a core tension driving the ongoing U.S.-China trade conflict. Viewed this way, the trade war is, at least in part, a very robust means of sanctioning China, even if the “sanctions” in question (unlike the indictments, and the cyber sanctions addressed to activity from other countries) are not specifically tied to particular events of IP theft.</p>
<p>But if the existing tariffs are in significant part about IP, that message has been muddled by Trump’s persistent focus on the bilateral trade deficit and by the application of the tariffs to a broader set of U.S. concerns about Chinese industrial policies and barriers to market access for U.S. firms. These broader issues dilute the connection between the blunt instrument of tariffs and the specific threat of cybertheft.</p>
<p>It is certainly possible that a grand bargain on U.S.-China trade issues—including industrial policies and market access—will contain substantial elements addressing cyber-enabled intellectual property theft. This prospect raises an additional puzzle: When it comes to cybertheft, what assurances can China realistically provide to the United States that would be more explicit or enforceable than Xi’s 2015 commitment to refrain from state-sponsored hacking for commercial purposes? Given the enduring <a href="https://www.hoover.org/sites/default/files/research/docs/williams_webreadypdf1.pdf">difference in political systems</a> between the United States and China, it is an open question how much of China’s resistance to preferred U.S. norms is baked into the Chinese system and how much can be dialed back without sacrificing Chinese leaders’ perceptions of their core interests. This fundamental issue applies as much to norms against economic espionage as to norms against market-distortive industrial policies, and provides yet another reason to think Washington’s indictment strategy is unlikely to alter Beijing’s macro calculus.</p>
<p>It is also possible that the indictment strategy may be working in imperceptible ways in conjunction with the United States’ new offensive posture in cyberspace. The unclassified summary of the <a href="https://media.defense.gov/2018/Sep/18/2002041658/-1/-1/1/CYBER_STRATEGY_SUMMARY_FINAL.PDF">Department of Defense’s 2018 Cyber Strategy</a> pledges to “defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.” This new strategic turn of phrase may <a href="https://www.lawfareblog.com/deepening-us-china-cybersecurity-dilemma">signal</a> an effort to supplement “deterrence” with “disruption”—including, in principle at least, U.S. government disruption inside China of the sources of malicious cyber activity against private-sector targets inside the United States. (It is perhaps notable that many of the companies targeted in the APT10 hack fall within what the U.S. government has deemed “<a href="https://www.dhs.gov/cisa/critical-infrastructure-sectors">critical infrastructure</a>” sectors.) With the Trump administration’s recent loosening of the rules governing U.S. <a href="https://www.washingtonpost.com/world/national-security/trump-authorizes-offensive-cyber-operations-to-deter-foreign-adversaries-bolton-says/2018/09/20/b5880578-bd0b-11e8-b7d2-0773aa1e33da_story.html?utm_term=.44636ce5fab3">cyber operations</a>, it is possible that some form of “forward defense” against state-sponsored cybertheft is already in the works.</p>
<p>There is no publicly available evidence about the extent to which the U.S. government has been successful in disrupting malicious cyber actors “at the source.” If such disruption has been happening entirely out of the public eye, the <a href="https://www.nytimes.com/2018/12/11/us/politics/trump-china-trade.html">near-daily</a> <a href="https://www.wsj.com/articles/u-s-navy-is-struggling-to-fend-off-chinese-hackers-officials-say-11544783401">reports</a> of <a href="https://www.dni.gov/files/NCSC/documents/news/20180724-economic-espionage-pub.pdf">state-sponsored</a> <a href="https://www.lawfareblog.com/chinese-hacking-indictments-and-frail-norm-against-commercial-espionage">hacking</a> against U.S. interests only magnify questions about the effectiveness of U.S. efforts. Additionally, a more disruptive offensive posture risks retaliation just as sanctions do. It remains unclear whether the <a href="https://www.lawfareblog.com/deepening-us-china-cybersecurity-dilemma">escalatory risks</a> of a disruption strategy will ultimately play more to Washington’s favor or to those of its adversaries. And it is puzzling what the indictment strategy—which long predates this new Defense Department policy—might add to these more aggressive efforts at disruption.</p>
<p>The bottom line is that United States continues to be <a href="https://www.hoover.org/sites/default/files/research/docs/381100534-strengths-become-vulnerabilities.pdf">asymmetrically vulnerable</a> to cybersecurity threats against private-sector companies on which U.S. economic and national security depend. By and large, the private sector has not been incentivized to invest in measures sufficient to prevent major compromises of intellectual property and trade secrets. And U.S. <a href="https://knightcolumbia.org/content/failure-internet-freedom">commitments</a> to free speech, privacy and limitations on domestic government surveillance make it difficult for the U.S. government to identify, prevent and respond to malicious cyber operations. These domestic issues add to the geopolitical complexities that have paralyzed the U.S. government from responding more vigorously, leaving the country with a series of high-profile criminal indictments that have achieved no discernibly positive effects and that might, on balance, be self-defeating.</p>
Fri, 28 Dec 2018 09:00:01 -0500Jack Goldsmith, Robert D. Williams16383The Death of Article II Treaties?https://www.lawfareblog.com/death-article-ii-treaties
<p align="center"><em>This piece is cross-posted at <a href="https://www.justsecurity.org/61841/death-article-ii-treaties/">Just Security</a>.</em></p>
<p>President Trump has submitted only one treaty to the Senate so far in his presidency. That is a historic low, and it is the latest sign that the Article II treaty process may be dying.</p>
<p>First, a little background. The only process specified in the U.S. Constitution for making international agreements is the one set forth in Article II, which requires that the president obtain the advice and consent of two-thirds of the Senate. For many decades, however, presidents have concluded the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1471550">vast majority</a> of international agreements through executive agreement processes involving either majorities in both houses of Congress (“congressional-executive agreements”) or unilateral presidential action (“sole executive agreements”). Some commentators, including <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108065">one of the present authors</a> (Hathaway) have suggested that ex post congressional-executive agreements in particular—those approved by Congress after negotiation, like the North American Free Trade Agreement—have become legally interchangeable with Article II treaties, or at least nearly so. But ex post congressional-executive agreements are even rarer than treaties. The vast majority of international agreements, <a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf">93</a><a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf"> percent</a><a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf"> or so</a>, do not receive post-negotiation approval from any chamber of Congress. They are, instead, either ex ante congressional-executive agreements (in which Congress authorizes the president in advance to make and conclude agreements), executive agreements pursuant to a prior treaty or sole executive agreements (the president acting alone).</p>
<p> Despite the availability of these alternatives, presidents in the past have still used the Article II process for some agreements. Most human rights, extradition and arms control agreements have been submitted to the Senate, for example. Sometimes presidents submit agreements to the Senate even though it is clear that consent from two-thirds of that body will be difficult to obtain, and in many instances those treaties are either <a href="https://www.nytimes.com/2012/05/24/world/americas/law-of-the-sea-treaty-is-found-on-capitol-hill-again.html">not reported out</a> of the Senate Foreign Relations Committee or even <a href="https://foreignpolicy.com/2012/12/04/senate-gop-rejects-u-n-disabilities-treaty/">defeated on the Senate floor</a>. Sometimes the Senate has insisted that certain agreements, such as <a href="https://www.nytimes.com/2002/03/17/world/senators-insist-on-role-in-nuclear-arms-deals.html">arms control agreements</a>, be concluded through the Article II process, and presidents have sometimes acquiesced. In other words, Article II treaties, although a small fraction of the overall number of agreements concluded by the executive, have until recently played a meaningful role in U.S. foreign relations law and policy. That no longer seems to be the case.</p>
<p>To be fair to Trump, the role of the Article II treaty was in decline before he came into office. Presidential use of the Article II process dropped to <a href="https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf">historic post-World War II lows</a> during the Obama administration. During his eight years in office, President Obama submitted only 38 treaties to the Senate, and the Senate approved only <a href="https://www.lawfareblog.com/senate-approves-two-more-treaties-bringing-obama-administrations-treaty-record-fifteen">15 of them</a>. (Since Obama left office, the Senate has approved six more of the treaties he submitted.) In comparison, President George W. Bush submitted well <a href="https://www.lawfareblog.com/senate-approves-two-more-treaties-bringing-obama-administrations-treaty-record-fifteen">over 100 treaties</a> to the Senate during his two terms, and the Senate approved most of them. That rate puts Bush roughly on par with prior administrations in the twentieth century. Between 1930 and 1999, the Senate approved an average of just over 15 Article II treaties per year (for data, see page 39 of <a href="https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf">this congressional report</a>). </p>
<p>Even against Obama’s lackluster backdrop, Trump’s record is stark: As we enter the third year of his presidency, he has submitted just one treaty to the Senate—a treaty amending an earlier <a href="https://www.senate.gov/legislative/trty_rcd.htm">fisheries agreement</a>. </p>
<p>There are a number of possible reasons for this sharp decline. Some are specific to Trump and some reflect broader trends. The main Trump-specific reason is that his administration may not prioritize international agreements. There is plenty of evidence for this view, including Trump’s renunciation of numerous important treaties and other agreements in his first two years. Moreover, as it prepares to enter its third year, the Trump administration still has not sent the Senate a Treaty Priority List, which is used by presidents to signal to the Senate the treaties that it would like the Senate to focus on. It should be noted, though, that the Trump administration has continued to conclude an array of typical executive agreements based upon purported statutory authorization. (This can be seen in the State Department’s online publication, <a href="https://www.state.gov/s/l/treaty/tias/">Texts of International Agreements to Which the United States is a Party</a>). In addition, presidents are sometimes slow to pursue approval of Article II treaties early in their presidencies because they tend to be more focused on domestic legislative priorities. (George W. Bush did not submit a treaty to the Senate until his second year in office.)</p>
<p>As for broader trends: There may be a relative drop-off in the number of multilateral treaties, and it may be that some forms of bilateral treaties—on topics like tax and extradition—are in less demand because the United States has completed such treaties with most nations. Also, as Cindy Buys has <a href="https://www.cambridge.org/core/services/aop-cambridge-core/content/view/DF2E506C1676D1979F3439AE36965CC9/S2398772300001859a.pdf/an_empirical_look_at_us_treaty_practice_some_preliminary_conclusions.pdf">noted</a>, the downward trend might reflect a fall-off from the 1990s boom in agreements related to the end of the Cold War and the height of globalization, as well as the diminution of agreements that resulted from the post-9/11 wars and the economic downturn in 2008. (That explanation, however, would seem to be belied by the continued robust number of congressional-executive agreements and sole executive agreements concluded by the United States during this same period.) On the domestic side, the Senate has been a barrier to all but the most uncontroversial Article II treaties. It is difficult, if not impossible, to get two-thirds of the Senate to agree on anything, much less a treaty. And it can take valuable committee and floor time to simply see a treaty stalled or defeated. This is probably why most Article II treaties in recent years have proceeded on unanimous consent. But this process means that even a single member of the Senate can block a treaty from proceeding. This political reality may help explain why Obama, who was seen as generally favorable to international cooperation, had a thin record of treaty submissions.</p>
<p>Regardless of the reasons for the decline, the Article II treaty process appears to be nearly dead, at least for now. It could be resurrected in the future, but at this time it seems unlikely that any new significant international agreements will be made through this constitutional process. As we shall explain in a future post, this has not stopped the U.S. government from making international agreements—instead, it is doing so through a less transparent, and in many cases less democratic, process. It may be that the Article II process is <a href="https://www.yalelawjournal.org/article/treaties-end-the-past-present-and-future-of-international-lawmaking-in-the-united-states">outdated</a> and should be allowed to die. But, if so, more consideration should be given to the international agreement practice that is replacing it, and to whether the appropriate legal architecture is in place to oversee and check that practice.</p>
Thu, 13 Dec 2018 10:00:17 -0500Curtis Bradley, Oona Hathaway, Jack Goldsmith16316Winter 2018 Supplement for Bradley & Goldsmith, Foreign Relations Law: Cases and Materialshttps://www.lawfareblog.com/winter-2018-supplement-bradley-goldsmith-foreign-relations-law-cases-and-materials
<p><a href="http://https://www.documentcloud.org/documents/5410877-Bradleygoldsmith-Supplement-winter2018-1.html">Here</a> is the Winter 2018 Supplement for Bradley &amp; Goldsmith, Foreign Relations Law: Cases and Materials (6<sup>th</sup> ed. 2017). These materials cover, among many other things, the Supreme Court’s decision in <em>Trump v. Hawaii</em> (the “travel ban” case), which is excerpted with questions; the Supreme Court’s decision in <em>Jesner v. Arab Bank</em> concerning corporate liability under the Alien Tort Statute; the Trump administration’s withdrawal from the Iran nuclear deal; legal issues raised by U.S. missile strikes against Syria; President Trump’s recognition of Jerusalem as the capital of Israel; and the debates and litigation concerning “sanctuary jurisdictions.” They also include less significant developments in foreign relations law since the last Supplement. The supplement is available in full below:</p>
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Tue, 04 Dec 2018 11:09:04 -0500Jack Goldsmith16257